EMAIL TO A FRIEND COMMENT

 

Informed Consent for Failure to Disclose Rare, but Serious, Complication of Epidural


A man suffered from back pain. He sought treatment from an orthopedic surgeon. Following an MRI, the orthopedic surgeon informed the man that he had a large herniated disc. The orthopedic surgeon referred the man to a back pain practice group for epidural injections.

 

At the man’s first appointment at the back pain practice group, the man was examined by a doctor who discussed a course of treatment involving a series of three epidural injections. The doctor did not discuss cauda equina syndrome (CES), a rare side effect of epidural injections which occurs when the group of nerves that runs from the lower back to the lower extremities become compressed. CES causes pain, muscle weakness, “saddle area” numbness, bladder and/or bowel incontinence, and/or sexual dysfunction.

 

The man returned to the back pain practice group for his first epidural injection. The man signed a consent form that contained the following list of specific risks of epidural injections, “Low blood pressure, temporary weak/numb arm or leg, headache requiring epidural blood patch.” The consent form also included underlined text stating, “I understand there are risks involved with spinal procedure, to include rare complications, which may not have been specifically mentioned above.” The man reviewed the form, but did not go over its substance with anyone at the back pain practice group. The man underwent the epidural injection.

 

One week later, the man returned for his second injection. The man executed a second copy of the same consent form. The doctor attempted to perform the same procedure as he did at the previous visit. However, after poor visualization from the initial dye spread tests, the doctor did not inject the man.

 

About two weeks after the initial injection, the man began suffering worse pain than prior to the man’s initial appointment with the orthopedic surgeon. The man returned to the back pain practice group and informed the doctor that he was now suffering from leg and back pain. The doctor prescribed Vicodin and referred the man to an orthopedic surgeon for an evaluation for spine surgery.

 

Four days later, the man returned to the back pain practice group for a final epidural injection. The man signed a third identical consent form. The doctor performed the epidural injection.

 

After leaving the doctor’s office, the man had difficulty sitting and standing and the man’s pain level increased. The man contacted the back pain practice group and was advised to take Vicodin to treat his pain. The doctor believed the pain was a normal result of the epidural injections.

 

Eight days later, the man awoke in pain. Later that day, the man realized for the first time that he was experiencing numbness in his genitalia. The man contacted the back pain practice group. The doctor on call concluded that the numbness was injection-related and prescribed Neurontin. Later that night, the man awoke to discover that, while sleeping, the man had urinated in bed.

 

The next day, the man was still in pain and suffering numbness. The man was also dripping urine from his penis. That evening, the man began suffering from pain in his genitals and on the front of his thighs.

 

The following morning, the man went to the emergency room (ER). He underwent emergency surgery. The man suffered permanent symptoms of CES including bowel and bladder incontinence and sexual dysfunction.

 

The man brought a medical malpractice claim against the back pain practice group, the doctor who performed the epidural injections, and the doctor on call. The complaint alleged that the back pain practice group, the doctor who performed the epidural injections, and the doctor on call negligently performed the epidural injections, failed to monitor the man properly after the injections, and failed to timely diagnose and treat CES. The complaint also alleged that the back pain practice group and the doctor who performed the epidural injections failed to obtain informed consent prior to the epidural injections by failing to advise the man of the risk of developing CES.

 

At trial, no evidence was presented that any medical provider, including the doctor who performed the epidural injections, advised the man of the risk of developing CES.

 

The man requested the jury be instructed on informed consent. The Middlesex County Superior Court of New Jersey, Law Division, declined to provide an informed consent instruction to the jury. The trial court noted that the man’s expert did not testify that there was a failure to give informed consent and the man testified that he read and signed the consent forms.

 

The jury returned a verdict in favor of the back pain practice group, the doctor who performed the epidural injections, and the doctor on call.

 

The Appellate Division of the Superior Court of New reversed. The court held that the trial court should have provided an informed consent instruction to the jury.

 

The trial court should have provided an informed consent instruction to the jury. The court found that the man was entitled to a jury charge on informed consent because at trial the man sufficiently established facts giving rise to an informed consent claim. The court noted that both parties’ experts testified that, within the medical community, CES is a well-known complication of epidural injections. The doctor who performed the epidural injections testified that he never discussed with the man the possibility that the injections would lead to CES. CES was not mentioned on the consent form the man signed. The failure of the doctor who performed the epidural injections to provide the man information regarding CES could have increased the level of harm the man ultimately suffered by contributing to his failure to go the ER sooner. The court concluded that reasonable minds may well have differed on whether the information the man was provided was sufficient; consequently, the issue of informed consent should have been presented to the jury.

 

The Appellate Division of the Superior Court of New Jersey reversed the trial court’s order declining to provide an informed consent instruction to the jury.

 

See: Abrahamson v. Bram, 2016 WL 7335816 (N.J.Super.A.D., December 19, 2016) (not designated for publication).

 

See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation

 

See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe

 

See the Medical Law Perspectives November 4, 2014, Blog: New Back Pain Treatment Options Offer Hope, Require Caution

 

 

REPRINTS & PERMISSIONS COMMENT