A man was left unable to walk after a surgeon operated at the wrong level of his spine, severing his spinal cord during surgery for spina bifida.

Health and Disability Commissioner (HDC) Morag McDowell found the surgeon breached the Code of Health and Disability Services Consumers’ Rights after the wrong-level surgery and his failure to order a postoperative MRI despite significant neurological decline.

She also criticised the absence of paralysis as a listed risk on the written consent form, although she found the overall consenting process was reasonable.

McDowell recommended a formal apology and audits of recent neurosurgical consent forms and multidisciplinary team meeting records at Health NZ Waikato.

According to an HDC report released yesterday, the 46-year-old man was born with spina bifida, a condition that did not greatly affect him until his 40s. Neither he nor the surgeon are named in the report.

When the man began experiencing tingling, pain in his feet and lower limb weakness, he was referred for an MRI scan and offered surgery for a lumbar laminectomy and detethering of the spinal cord.

Lengthy discussions were recorded that emphasised the surgery was to help prevent further deterioration.

Before surgery on November 18, 2016, the man was given a consent form to sign that listed several risks, but not paralysis.

A typed operation note, however, recorded discussion with the patient and said “[The man] was adamant that he wanted surgery despite the risks of more weakness and paralysis, complete loss of bowel/bladder function. Consent was taken.”

He was reassured on three occasions that his ability to walk would not be affected and there was a “5% chance that things may go wrong”.

After the procedure, the man experienced paraplegia in his lower limbs and could not walk, but the doctor said his symptoms would improve.

In January 2017, the man’s recovery was still slow and a subsequent MRI revealed the surgery had been performed one spinal level higher than intended and that his spinal cord had been cut at L4.

The man had five more surgeries, filed a successful ACC claim for treatment injury and lodged a complaint with the HDC stating the surgeon and Health NZ Waikato should be held accountable. He remains unable to walk and uses a wheelchair for mobility.

The surgeon told the HDC he had never hidden the fact that he operated at the wrong level and had apologised, however the patient said he “never came clean on what really happened in surgery”.

Independent clinical advice was provided to the HDC by neurosurgeon Dr Reuben Johnson, who said the overall consenting process was appropriate but he was critical of the fact that “paralysis” and/or “paraplegia” were not listed on the man’s written consent form for the first operation. He said records showed the risk of paraplegia had been discussed with the patient before surgery.

Johnson considered the risk of paralysis should be noted on the surgical consent form for any neurosurgical procedure on the spine and said the omission was a moderate departure from accepted standards.

He said the operation and failure to identify the correct level for the procedure constituted a severe departure from accepted standards of care.

McDowell accepted that advice and found the wrong-level surgery, together with the failure to request an earlier postoperative MRI, amounted to a breach of the code.

Johnson also noted a postoperative MRI scan would have identified the injury to the man’s spinal cord, leading to earlier communication to him about the error, and considered that failure to be a moderate departure from accepted standards of care.

McDowell was also critical of postoperative follow-up, particularly not ordering an MRI scan sooner to investigate, and found it to be a departure from expected standards of care.

She accepted that paralysis should have been listed on the consent form, but found the overall consenting process was reasonable because medical records documented discussions about paraplegia and other serious risks before surgery.

McDowell also noted the patient recalled being told there was a 5% chance that “things could go wrong”.

The surgeon said he had since made changes including pre- and post-incision X-rays for all spinal surgeries to ensure he is operating at the correct level.

McDowell recommended the surgeon provide a formal written apology to the man within three weeks of the report and that Health NZ Waikato reflect on the wording used on surgical consent forms for spinal procedures.

“In particular, clinicians should ensure that the terms ‘paralysis’ and/or ‘paraplegia’ are stated as risks for any neurosurgical operation on the spine.”

An audit was recommended of the past 10 neurosurgical MDTMs at Health NZ Waikato to ensure discussions are appropriately recorded.