Minor surgical procedures in general practice can lead to a wide variety of claims. Dr Clare Devlin, medicolegal consultant at Medical Protection, advises on the importance of being aware of the common pitfalls
A common feature in many minor surgery claims is a problem with consent, where shortcomings in the consent process can sometimes make the difference between a successful defence and settlement. The consenting process is where the doctor and patient discuss the treatment options available, including alternatives such as non-surgical management or no treatment – and, when fully informed, the patient agrees to a particular course of action.
In addition to the expected benefits of treatment, patients need to understand the risks and potential complications. Following the 2015 Supreme Court judgment in Montgomery v Lanarkshire, it is important for doctors to have an individualised discussion with a patient, so that the ‘material’ risks, that is the significant risks that may matter to the patient, are identified and addressed.
What are material risks?
The Supreme Court ruling explains what it considered to be a ‘material’ risk:
“The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.” (paragraph 87)
A way to open this individualised consenting discussion can be to ask a patient if there is anything in particular that they are concerned about, or anything in particular that would make them decide against treatment.
The Montgomery judgment emphasises the expectation of discussion taking place between patient and doctor: “The doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor’s duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.” (paragraph 90)
The role of record keeping in the consenting process
An important feature of the consenting process is documenting the issues that were discussed with the patient during the process, as well as taking the patient’s signature on a consent form when consent is written. In the absence of documentation of the issues discussed, it is possible to give an account of your usual practice when consenting a patient for the procedure in question, but if the patient brings a claim and disputes that certain points were discussed, it is important to have a contemporaneous record of the consenting discussion to support your account. It can also be helpful to record that the patient was asked if they had any particular concerns or any particular issues that were important to them.
Common problems in minor procedures
Cryotherapy
This may seem like a minor procedure but it can be complicated by scarring that can lead to cosmetic concerns in certain patients, who may then seek dermatology review and further dermatological management of the scarring. In some cases, their scarring may ultimately need to be addressed with camouflage makeup.
It is also possible for burns from cryotherapy to be deep and even require skin grafting or undergo protracted healing by secondary intention. Discussion of possible scarring will therefore be important in the consenting process, and a documented consenting discussion could enable minor scarring to be defended in the context of a claim.
Implanon contraceptive implant
A number of different complications can be seen with the contraceptive implant. It is possible, if interrupted or distracted during the insertion procedure, to lose one’s place in the procedure, and to believe the procedure has been completed when the implant is in fact still in the introducer. This risk can be avoided by always palpating the implant after insertion. Using a checklist can also prevent steps being forgotten when you are busy and experiencing distractions.
Alternatively, the implant may be wrongly sited, or can appear to migrate from an initially correct and palpated site of insertion. It can lead to symptoms such as pain or tingling, and in some cases may require referral to secondary care for removal if it is not possible to locate and remove the implant in GP practice. It is therefore important to document the anatomical site of Implanon insertion within the patient’s medical record.
Intrauterine contraceptive device
It can happen that an intrauterine device is inserted without the previous one having been removed. This can be avoided by taking a clear history from the patient of the removal of their previous IUCD and looking for corroboration of the patient’s account in the medical records. Another complication that we see, in IUCD clinical negligence claims, is uterine perforation, leading in some cases to chronic pelvic pain or unplanned pregnancy.
Clear documentation of the discussion in the consenting process and the steps taken in the insertion procedure itself can be of assistance in defending such claims, by demonstrating that the GP had a reasonable insertion technique. We can also make use of an account of the GP’s training and experience in IUCD insertion, together with a detailed statement of their usual practice.
Minor surgical specimens sent to the laboratory
Claims can relate to the handling of specimens sent to the laboratory for histology. Difficulty can arise if a sample is not received by the lab and there is no system in the GP practice to ensure that a report is received back for each specimen sent. A system that only reviews the reports received from the lab will miss cases where a specimen was not received by the lab, or where a result was not returned to the practice, and in some cases this can lead to delayed diagnosis of a significant condition.
Another scenario is that two areas may be biopsied and the labelling of the two specimens swapped accidentally when sending them to the lab. If one is malignant and one benign, this can lead to inappropriate treatment because the benign lesion receives further surgical treatment, but there is delay in diagnosis of the malignant lesion, which is taken as benign until its clinical progress raises further suspicion and investigation.
Ingrown toenail surgery
Toenail procedures can lead to claims about pain, bleeding and infection, which can even progress in some cases to osteomyelitis, requiring prolonged antibiotic treatment or further surgery. A detailed record of the consenting process, including discussion of all options available to the patient, will assist in defending these claims.
Ear syringing
Ear syringing may be complicated by a perforated ear drum, pain, balance difficulties or ongoing infection. It is important to document the discussion held with the patient prior to the syringing, as well as noting whether or not they had used softening drops prior to the procedure.
In defending these claims, we are assisted by the experience of the clinician, in terms of the training they have undertaken, the number of years they have been performing the procedure, and the approximate number of procedures undertaken. We will also need an account of the consenting process and steps taken in the actual procedure, both from the contemporaneous records and the operator’s usual practice, perhaps assisted by the operator’s recollection of the specific case.
Learning points
- The importance of documenting the consent process cannot be overemphasised.
- The presence of consent should be recorded, as well as the date and whether it was written or verbal.
- Clinicians should document a list of the alternatives discussed, as well as the treatment proposed.
- Any particular technical aspects of the treatment discussed should be recorded, such as the type of incision or site of procedure.
- The risks discussed should be outlined as well as the fact that the patient was asked if they had any specific concerns and, if so, what was discussed.