17. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We also look at whether there are signs the events complained about had a negative effect on the person, which the organisation has not put right. We will go on to explain our decision and the reasons for this in relation to each complaint.
Consent for surgery
18. Mrs A complains the Trust did not properly gain her consent for who would perform the surgery on 24 February 2022. Mrs A says she believed the surgery would be completed by Mr D, Consultant Surgeon. She is concerned that Dr E, Senior Clinical Fellow, also took part in the surgery.
19. In response to the complaint, the Trust said Dr E assisted Mr D during the surgery, and Mr D was the lead. It said the consent form does not explicitly state it would be Mr D carrying out the surgery. The Trust said the consent form was countersigned by Mr D and Dr E. It explained for most procedures a consultant would have an assisting team, such as junior doctors and nursing staff, as well as support from an anaesthetist. The Trust said all the medical professionals who were part of the surgery were medically qualified to support.
20. We reviewed Mrs A’s clinical records. The consent form was signed by Mr B, as Mrs A lacked capacity to provide consent. The consent form was also signed by Mr D and Dr E. On the operation record, it is documented that Mr D was the consultant and Dr E was the assistant. There is also a WHO Surgical Safety Checklist which asks, ‘Has the team introduced themselves by name and role?’ and this is ticked.
21. Our adviser explained it is not generally mentioned in the consent form who will be performing the surgery. He explained surgery is performed under the care of the responsible consultant, which in this case was Mr D. He also confirmed the operation record shows Mr D was involved in the surgery and Dr E was assisting him. Our adviser did not raise any concerns about the consent process followed.
22. The GMC guidance on Decision making and consent sets out some principles, including, ‘The choice of treatment or care for patients who lack capacity must be of overall benefit to them, and decisions should be made in consultation with those who are close to them or advocating for them.’
23. The RCS guidance on Good Surgical Practice says:
• ‘Delegate duties and responsibilities only to those specialist trainees and foundation doctors or other doctors whom you know to be competent in the relevant area of practice.’
• ‘Be present throughout an operation until you are satisfied that the trainee is competent to carry out the procedure without immediate supervision.’
24. We consider that the surgical team followed good practice in line with the WHO guidelines by introducing themselves to Mrs A on the day. Prior to this, Mr B signed a consent form for Mrs A’s treatment, which indicated that Mr D and Dr E would be involved. This was in line with the GMC guidance to involve those advocating for a patient who lacks capacity. We also consider the RCS guidance was followed as Mr D was the responsible surgeon and therefore present throughout the surgery.
25. Based on the evidence available and the clinical advice received, we did not identify any indications of failings in relation to this complaint.
Surgery on 24 February 2022
26. Mrs A complains something went wrong when the surgical team performed orthopaedic surgery to her right foot on 24 February 2022. In particular, she believes either the administration of anaesthetic, the application of a tourniquet or her positioning during the surgery caused foot drop (where the foot cannot be lifted by the ankle) due to paralysis of the common peroneal nerve (this provides sensation and some motor function to the lower leg and top of the foot. It is one of the branches of the sciatic nerve which wraps around the outside of the knee to reach the front of the calf).
27. In response to the complaint, the Trust said there is no evidence to suggest foot drop may have occurred as a direct result of the surgery. The Trust explained this is because the tourniquet and local anaesthetic were positioned below the muscles that move the ankle. The Trust also said Mrs A’s positioning during the surgery would not have caused pressure on her common peroneal nerve.
28. Mrs A’s clinical records show she had local anaesthetic and a tourniquet was used at the ankle. The WHO Surgical Safety Checklist asks if the patient is safely and securely positioned, and this is ticked.
29. Our adviser explained foot drop is not a known or anticipated complication of toe surgery. He explained it can rarely happen due to prolonged pressure on the common peroneal nerve. This could be due to the patient’s positioning, generally when under general anaesthesia, or due to application of a tourniquet at the thigh for a prolonged period. However, none of these circumstances were present during Mrs A’s surgery.
30. Our adviser provided some references which include examples of different causes of nerve injury in relation to the foot and ankle:
BOFAS Hyperbook:
‘Peri-operative injury from external compression and non-surgical treatments:
• casts/splints/dressings • injections • patient positioning during surgery’
NCBI article on ‘Peroneal Nerve Injury’:
‘External compression sources • tight splints or casts • compression wrappings or bandages • habitual leg crossing • prolonged bed rest, including in comatose patients or those intubated for long periods • positioning during anesthesia and surgery…’
31. Our adviser explained these examples do not apply in this case, as Mrs A did not have any of these above the ankle, the surgery was of short duration, and she was not under general anaesthetic.
32. Mrs A received local anaesthetic injected around the toe. Our adviser explained the muscles which move the ankle and toes are controlled by nerves higher up in the calf region. For this reason, an injection in the toe would not affect the ankle muscles to cause foot drop.
33. Mrs A had a tourniquet around her ankle. For the same reason as explained above, this would not affect the muscles which move the ankle and toes.
34. Our adviser said as the surgery was short (it lasted nine minutes) and Mrs A was awake, so able to move her leg, it is unlikely her positioning would cause compression around the knee joint (which is where the muscle supplying the ankle is most vulnerable to injury).
35. After considering the above factors, our adviser concluded it is unlikely Mrs A’s foot drop was a direct result of anything that happened during the surgery. He explained any injury at or below the level of the ankle cannot affect the muscles that move the ankle.
36. After considering the circumstances of Mrs A’s surgery and the clinical advice received, we did not identify any indications of failings in relation to this complaint. We are sorry that Mrs A has experienced foot drop and the ongoing problems she has had as a result. We are not able to link this to anything that happened during her surgery.
Post operative assessment
37. Mrs A complains the Trust failed to carry out a proper post operative assessment and therefore identify foot drop on 24 February 2022. Mr B says his mother’s foot was too heavily bandaged for nursing or physiotherapy staff to be able to confirm normal movement and sensation and exclude foot drop. Mr B says his mother was displaying symptoms of foot drop, as she was dragging her right foot whilst attempting to walk with the use of her crutch. Mr B also says his mother was in too much pain to carry out any normal movement.
38. In response to the complaint, the Trust said it is documented Mrs A was weight bearing after the procedure. The Trust said she was reviewed by the nurses who recorded normal movement and sensation. It said the physiotherapy team trialled her with crutches before discharge and there was no concern raised about foot drop. The Trust said if foot drop had been present, Mrs A’s mobility would have been affected at this stage and the physiotherapist would have spotted it. It said appropriate assessments, which include observing the positioning of the foot, are still possible with bandaging.
39. Mrs A was seen by the nursing team and physiotherapy team after surgery. The records show there was an assessment of pain, with a score of 0, as well as movement and sensation. The records also support that the physiotherapy team observed her mobilising and fully weight bearing.
40. There is no indication any concerns were raised regarding weakness around the foot or foot drop during the post operative assessment. Our adviser said it is likely if there was obvious weakness in the foot or foot drop, this would have been noticed, despite the presence of bandaging.
41. We have seen from the records Mrs A had a telephone assessment with a physiotherapist on 2 March 2022 and a dressing change in the dressing clinic on 8 March 2022. There is no indication any relevant concerns were raised during these appointments. Based on the evidence available, the first time this was raised was when Mrs A saw a physiotherapist on 24 March 2022. During this appointment the physiotherapist examined Mrs A and found she had evident right foot drop.
42. NMC The Code says nurses should ‘Recognise and work within the limits of your competence. To achieve this, you must, as appropriate: accurately identify, observe and assess signs of normal or worsening physical and mental health in the person received care.’ We have not seen any indication that the post operative assessment fell short of this.
43. We consider it is likely the Trust did not identify foot drop at the post operative assessment as this was not apparent or present at the time. We acknowledge Mr B’s account is not supported by what is documented in the clinical records. However, the records are detailed and thorough and we consider they are reliable, particularly as they provide an account of what happened which was documented at the time.
44. We appreciate it must be upsetting for Mr B and Ms C to worry their mother’s foot drop could have been identified sooner. Based on the evidence available and the clinical advice received, we did not identify any indications of failings in relation to this complaint.
Referral to peripheral nerve injury unit
45. Mrs A complains the Trust did not make a referral to a peripheral nerve injury unit for a second opinion on the cause of her foot drop and treatment. Mr B says he asked his mother’s GP to refer her.
46. The Trust said Mrs A’s symptoms only indicated spinal lesions as opposed to peripheral nerve injury. It said as she was already under the spinal orthopaedic service, no onward referral was required.
47. It is documented in the records a consultant neurologist saw Mrs A on 17 May 2023 and did not think she needed a referral to a specialist nerve unit. We understand Mrs A’s GP referred her to the peripheral nerve injury unit, where she was seen on 27 June 2023.
48. The Consultant Peripheral Nerve Surgeon concluded Mrs A had a conduction block of the common peroneal nerve (when the nerve is not able to transmit signals properly) at the level of the fibular neck (one of the two long bones in the lower leg). The surgeon noted the conduction block had partly resolved. The surgeon discharged Mrs A and referred her for physiotherapy.
49. We have not found any indication that the Trust’s decision not to refer Mrs A to a peripheral nerve injury unit had a negative impact on her. We note Mrs A had already been receiving physiotherapy and that the surgeon did not recommend any further treatment was needed.
50. As we have not identified any indications something went wrong which had a negative impact on Mrs A, we will not be considering her complaint further. We are sorry to hear of the problems Mrs A has experienced with her foot and hope she continues to make a good recovery.