“Nobody Said It Might Not Help”: Consent Before Spinal Surgery

Spinal surgery and stimulator guides · 14 min read · Published 10 November 2026 · Reviewed 10 November 2026 · Next review May 2027

By Dr Rosemary Listing, PhD (Law) · Medical negligence lawyer since 2014 · Of Counsel, Peter Evans & Associates

If you had spinal surgery and later felt you didn’t really understand what you were agreeing to, I want you to know that the feeling is worth paying attention to. Consent is more than a signature. You were entitled to a real conversation.

This guide covers what good consent for spinal surgery looks like, what surgery can and can’t achieve, the risks, what your records should show, and how the law looks at it.

Start with your question

• What should I be told before spinal surgery?
• Does surgery for cervical myelopathy reverse damage?
• Are there alternatives to spinal surgery?
• What are the risks of neck surgery?
• Is signing the consent form enough?
• Should I get a second opinion?
• Could this be medical negligence?

What surgery aims to do

The first thing you should understand is what the operation is for. Is it to relieve pain, to take pressure off a nerve, to stabilise the spine, or to stop a condition getting worse? Those are different goals, with different chances of success.

An example: surgery for cervical myelopathy

Degenerative cervical myelopathy (DCM) is compression of the spinal cord in the neck, often from wear and tear. Myelopathy.org explains that AO Spine guidelines recommend surgery for moderate or severe DCM and for DCM that is getting worse, while for mild, stable DCM surgery is an option.² It describes surgery as the only known way to halt progression, with the main aims of stopping disability getting worse and allowing some recovery.²

That matters for consent. If surgery is mainly to stop things getting worse, you should be told that. Myelopathy.org reports that among people with disability from DCM, about 60% improve after surgery, about 30% stay the same, and under 10% continue to worsen.²

The alternatives

You should be told about the reasonable alternatives, including physiotherapy, other treatment, or careful monitoring. For DCM, Myelopathy.org says physiotherapy may help very mild changes, and a trial of conservative treatment can help judge whether surgery is needed in mild DCM, but it is not recommended once DCM is moderate or severe.²

The risks

For neck surgery for DCM, Myelopathy.org lists common risks including a tear in the lining around the spinal cord, a spinal fluid leak, bleeding around the cord, nerve root injury (including C5 palsy, which weakens the shoulder), worsening myelopathy, neck pain, swallowing difficulties, a hoarse voice and infection. Less common risks include inadequate decompression and spinal cord injury.²

Questions to ask your surgeon

• What exactly is the operation meant to achieve for me?
• How likely am I to improve, stay the same, or get worse?
• What happens if I wait, or try something else first?
• Which risks are most likely for me, given my job and life?
• How many of these operations do you do?

Time to decide

Unless it is an emergency, you should have time to think, ask questions and get a second opinion. The Australian Commission on Safety and Quality in Health Care describes informed consent as voluntary agreement given after accurate information about options, benefits and material risks.³

The consent form

A signed form is evidence that a consent conversation happened, but it doesn’t prove what was said or understood. A form signed in a corridor on the morning of surgery, without a proper conversation beforehand, may count for little. Clinic letters written to your GP are often the best record of what was discussed.

After surgery: when to get help

Our guides to spinal fusion hardware failure and cauda equina syndrome cover other spinal problems.

What to look for in the records

Your records are often where the story becomes clear. You have a right to access your own health information. In NSW the Health Records and Information Privacy Act 2002 covers both public and private providers, and the Information and Privacy Commission explains how to ask.⁴ Our step-by-step guide to getting your medical records in Australia walks you through it.

How the law looks at it

Spinal surgery that doesn’t help, or that causes a complication, is not automatically negligence. Many risks happen even with careful surgery, and surgery can be the right choice even if it doesn’t succeed. The legal questions about consent are whether you were told what you needed to know to decide, and whether you would have decided differently if you had been.

A claim usually turns on three questions: whether the care fell below what peers would widely accept as competent practice (section 5O of the Civil Liability Act 2002 (NSW))⁵, whether that shortfall probably caused harm you wouldn't otherwise have had (Tabet v Gett)⁶, and, where it matters, whether you were told the material risks first (Rogers v Whitaker)¹³. Our guide to how a medical negligence claim works explains each one in plain terms.

In a spinal consent case, the questions might be: were you told what the surgery aimed to achieve and how likely it was to help? Were the alternatives explained, including waiting? Were the material risks explained, including any that mattered to you in particular? Did you have time to think?

In plain terms, the question is whether, if you had been properly told, you would probably have decided not to have the operation, or to have it at a different time or with a different surgeon, and so avoided the harm.

For spinal surgery, that would usually include the aims, the likely benefit, the alternatives, and risks such as nerve injury, a spinal fluid leak, infection, and the surgery not helping.

Who can claim, and when

The person who had the surgery can claim. In NSW, time usually runs from when you knew, or ought to have known, enough to claim, not from the treatment itself, and courts can sometimes extend it, so an old injury may still count. See time limits in NSW or other states, and ask early.

More: complaint or claim? · how a claim is paid for · what a claim can cover

In my practice

In spinal consent files, I often find that the clinic letter lists risks in medical terms, and the patient remembers being told only that the risks were “the usual”. The bigger gap is often about purpose: people believe surgery will fix their symptoms, when the surgeon’s aim was to stop them getting worse. Reading the letter alongside the person’s memory of the appointment usually shows clearly what was and wasn’t said.

Both things can be true

Your surgeon may have operated skilfully and may have recommended the right operation, and the consent conversation may still have fallen short. You can respect the surgery and still feel you weren’t given the choice you deserved.

The bigger picture

Informed consent is a central part of the national safety standards.³ You can check a surgeon’s registration on the Ahpra public register,⁷ and complaints about care in NSW can go to the Health Care Complaints Commission.⁸

Our spinal and neurosurgical negligence page brings together our spinal guides, including stimulator lead migration and headache after a stimulator.

Support

You don't have to work through this alone. These services can help:

• Lifeline, 24-hour crisis support: 13 11 14 (listed on healthdirect's helplines page)⁹
• Beyond Blue, anxiety and depression support: 1300 22 4636
• Medicare Mental Health, help finding mental health support: 1800 595 212
• healthdirect, 24-hour nurse advice: 1800 022 222
• Health Care Complaints Commission (NSW): 1800 043 159

A woman who signed a form in a corridor now knows what the conversation should have covered. You deserve that clarity too.

With care,
Rosemary

Frequently asked questions