Damages awarded to patient who was treated with Botox against her consent

Posted: 27/02/2018

Penningtons Manches’ clinical negligence team has settled a claim against a neurologist for administering Botox injections to various areas of a patient’s face without consent. Following the injections, the patient complained of acute symptoms of blurred and double vision, a bunched up cheek on one side and a dropped face on the other side. Her symptoms affected her work and family life and caused her a great deal of stress and anxiety.

The patient had a history of suffering migraines and had tried various medications, including Rizatriptan and Amitryptyline, but with only moderate improvement. Her treating consultant therefore advised exploring alternative therapies to treat her migraines. She derived some symptomatic relief from physiotherapy leading her consultant to believe that her migraines might be caused by pain in her neck. He suggested Botox injections in the back of her neck might improve her symptoms and she agreed to be referred to a neurologist who specialises in Botox therapy.

She attended the specialist in January 2016. At that appointment, the specialist told the patient she would administer Botox into her neck, as well as her temples and around her eyes. The patient is emphatic that she did not agree to this and made it clear that she had been referred only for Botox into her neck; she provided a number of reasons why she did not want Botox treatment to her face. At the end of the consultation, which the patient felt was very short, the specialist proceeded to administer Botox. The specialist did not explain the recognised risks and complications of Botox injections and did not ask the patient to sign a consent form agreeing to the proposed treatment. The patient said that Botox was first injected into her neck, as expected, but that the specialist then proceeded with injections into her temples, cheeks and around her eyes. Before leaving the clinic, she expressed her shock and anger at the Botox being administered in those areas of her face where she had not agreed to receive treatment.

The patient subsequently experienced a number of side effects, including a dropped face and problems with blurred and double vision. She was referred to an ophthalmologist who confirmed that the visual symptoms were caused by temporary muscle paresis from Botox treatment. Fortunately, the symptoms were not permanent and slowly improved as the Botox wore off over a number of months.

Penningtons Manches was instructed and, after obtaining and reviewing the patient’s clinical notes, was concerned that the Botox specialist’s consenting process had been inadequate. An expert neurologist was instructed to review the records and provide his opinion on the information that she should have been given before Botox injections were performed and on whether the specialist had acted with the required care and skill. The expert was also asked to set out how any failings on the specialist’s part had caused the patient to suffer a worse outcome than would have been the case if she had been properly consented.

The expert confirmed that the specialist had failed to advise on the recognised and material risks of Botox therapy and had failed to obtain her informed consent to the treatment. While the symptoms the patient suffered were recognised side effects, the patient maintained that she only consented to injections in her neck. She would not therefore have had the injections in her temples, cheeks and around her eyes and would have avoided the side effects she suffered.

The defence organisation representing the specialist took a pragmatic approach to the claim and, after investigating the allegations that had been made, agreed a prompt and appropriate settlement.

Arran Macleod, a solicitor in the clinical negligence team at Penningtons Manches, commented: “Following the Supreme Court decision in Montgomery v Lanarkshire Health Board, consent must be obtained from any patient before treatment is performed. In obtaining that consent, a doctor must take reasonable care to ensure that the patient is aware of all material risks involved in the recommended treatment and of the availability of any reasonable alternative.

“In this case, our client explained to the Botox specialist the reasons why she did not want treatment in other areas than in her neck but the specialist proceeded despite her expressly withholding her consent.

“It is important that doctors take the time to understand patients’ individual needs and concerns. They are only in a position to give their informed consent if they have been advised of the material risks of treatment, of any reasonable alternative options and of the pros and cons of those alternatives. Only then should doctors proceed to treatment.”

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