Generally Consenting for Chronic Nerve Pain and/or Nerve Damage

Nerve damage is a typically rare, albeit recognised complication that can arise from a number of different surgical procedures. Nerve damage can greatly vary in severity, from causing complete disability to temporary minor chronic pain.

Nerve damage can be caused by a number of factors, including:

  • Instrumental damage - for example caused by direct scalpel incision to the nerve and/or use of other instrumentation (such as those being used to maintain clear airways);

  • Restriction of oxygen to the nerves - for example by the application of a tourniquet, metalwork being inserted, and/or a blood clot;

  • Compression and stretching of the nerves - for example, this can be caused by a patients position whilst under general anaesthetic.

Cause of nerve damage can also be unknown and unexpected.

Whilst consenting for complex surgeries will always include nerve damage or chronic nerve pain, especially those focusing in or around nerve centres, this is often something overlooked for straight forward ‘simpler’ operations. This can cause a number of difficulties:

  • Managing patient expectations - patients often overlook the fact that wherever skin is opened surgically, there is a potential for residual chronic nerve pain from an incision site that was not previously there. Where expectations are not managed, this can result in a complaint or claim;

  • Defending a claim - where a patient has suffered nerve damage and includes this within a claim for clinical negligence, even if the nerve damage or chronic nerve pain may be due to a pre-existing condition and is not proven to be due to surgical complication, in the absence of clear consenting, it may not be possible to defend the claim.

For example, if a patient claims that they would not have proceeded had they been consented and told about the possibility of nerve damage, and went on to suffer nerve damage, in absence of clear consenting evidence, even if the damage may be a recognised complication, the claim will be difficult to defend in light of the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015].

To assist with managing patient expectations, and to assist defending nerve damaged based claims, generalised consenting for chronic nerve pain and/or nerve damage should always be considered.