Anaesthesiologists work in complex and pressured environments – experiencing a medicolegal case can be an additional source of stress.
We’ve analysed the support Medical Protection has provided South Africa-based anaesthesiologists in relation to almost 1,700 cases and 1,000 claims. We hope that sharing our learnings will help in understanding why patients decide to take action, as well as explaining why claims are settled.
Claims in anaesthesiology can sometimes lead to large financial settlements because complications can result in permanent, serious loss of function; for example, hypoxic brain damage sustained during general anaesthesia.
The value of the settled claim will often include compensation for care and loss of earnings, if applicable, as well as an award for the damage that resulted from a breach of duty. The value of each claim varies enormously, with our highest anaesthesiology total case payment (claimant damages, costs and legal costs) being in excess of R22 million.
MPS case types
Claims in relation to dental damage were most common. These included loss or damage to crowns, bridges, implants and veneers, as well as to native teeth. In most cases, the damage was generally considered to have occurred at the time of airway manipulation, such as intubation or extubation, or insertion or removal of a laryngeal mask airway. Some cases related to other equipment, such as suction catheters. There were cases where a dislodged tooth or crown was swallowed, necessitating further investigation to confirm its location and additional management.
Approximately two thirds of the claims were settled, with significant contributing factors to the need to settle being:
- failure to take a dental history from the patient
- failure to inform them about the possible risks of dental damage as a result of the anaesthetic procedure
- failure to document any examination performed or discussion of risks.
Many of the remaining claims were not pursued.
The highest total payment made in relation to dental damage was over R165,000.
Medical Protection has a factsheet relating to the risks of dental damage during anaesthesia – visit the website to explore this and other extensive resources.
Epidural or spinal anaesthesia
A number of claims related to neurological damage allegedly caused by epidural or spinal anaesthesia. This included ongoing and persisting paraesthesia and weakness to one or more limbs. Allegations included:
- failing to obtain adequate informed consent and warn of the risks
- failing to abandon the procedure if initial attempts were unsuccessful
- failure to adequately monitor postoperatively, resulting in delayed recognition of complications such as haematoma.
We were able to defend a significant proportion of these claims where the risks had been explained to the patient and clearly documented.
The highest total claim payment was over R650,000.
Several claims were brought specifically in relation to inadequate spinal or epidural anaesthesia for caesarean section, alleging pain during the procedure and psychological injury as a consequence. The majority of these claims were not pursued when the anaesthetic records either indicated swift conversion to general anaesthesia due to pain, or that there were no changes in vital signs throughout the procedure and no complaints of pain by the patient either at the time or following the surgery.
Hypoxic brain injury
A number of claims were made in relation to hypoxic brain damage at the time of anaesthesia. Claims related to both adults and children, and for a wide range of procedures, including appendicectomy, tonsillectomy, cholecystectomy, breast surgery and fracture fixation. Allegations included:
- failure to monitor end tidal carbon dioxide levels
- failure to identify and act on hypotension
- failure to identify and act on bradycardia
- failure to act on falling oxygen saturation levels
- failure to adequately ventilate the patient.
Further allegations were often made in relation to record keeping and documentation of vital signs throughout the period of anaesthesia.
The highest total claim payment was over R22 million.
Claims following inadequate airway management
A small but significant number of claims were made in relation to death occurring under anaesthesia or conscious sedation. Many of the allegations were:
- failure to adequately monitor and act on deteriorating vital signs
- failure to adequately intubate and/or ventilate the patient
- failure to perform a tracheotomy once the airway difficulties had been identified.
In some cases, the cause of death was not clear and may not have been a consequence of anaesthesia, but poor documentation and failure to record vital signs meant it was not possible to defend these claims.
The highest total claim payment was over R620,000.
Awareness during general anaesthesia
Some claims were identified relating to accidental awareness under anaesthesia, where insufficient or no volatile anaesthetic agent was administered following induction of anaesthesia.
The highest total claim payment was over R160,000.
Chronic pain management
There were a number of claims following procedures such as thermal radiofrequency ablation and percutaneous spinal cord stimulation for chronic back pain or cervicogenic headache.
Allegations related to:
- Poor technique.
- Failure to offer or exhaust conservative options prior to performing more invasive procedures.
- Failure to perform diagnostic blocks using local anaesthetic to localise the origin of the pain prior to performing radio frequency ablation.
- Use of general anaesthetic rather than sedation when performing these procedures, meaning there was no opportunity to obtain feedback from the patient at the time.
- Poor record keeping.
It was claimed that these failures resulted in harm such as spinal cord lesions leading to long term weakness and/or pain and paraesthesia of one or more limbs, and worsening of pre-existing pain.
Regulatory (HPCSA) and disciplinary cases – common themes
Regulatory and disciplinary cases can be triggered by patients (or their relatives) and colleagues, and may be related to clinical or non-clinical issues. The majority were regulatory cases and almost two thirds were in relation to fees or billing matters.
Where fees or billing were the issue, the concerns included:
- Overcharging by the anaesthesiologist for the service provided.
- Not obtaining proper financial consent.
- Charging for assessments or procedures not performed.
- Charging for drugs or procedures that were not consented to.
- Charging for unnecessary drugs.
- Poor communication about the nature of costs prior to the procedure.
- Poor attitude or rudeness in the approach to pursuing payments at a later date.
- Continuing requests for payments on settled accounts.
- Unhappiness about co-payments.
- Charging higher rates than medical aid would cover.
Those matters referred to the HPCSA that did not relate to fees or billing included:
- Disclosure of confidential information without consent.
- Health concerns such as drug misuse by the practitioner.
- Inadequate anaesthesia or pain relief from epidural or spinal anaesthesia.
- Poor technical performance of procedures such as cannulation, central line insertion, epidurals and regional anaesthesia.
- Administration or prescription of medication to which allergy was documented.
- Failure to adequately protect the eyes during general anaesthesia, leading to corneal damage.
- Injury, for example, to the brachial plexus or to the face, as a result of poor positioning or insufficient protection of pressure areas during general anaesthesia.
- The use of conscious sedation leading to loss of airway or failure to recognise the loss of airway, and complications such as hypoxic brain damage, death and aspiration of gastric contents.
Complaints – common themes
- Complications of cannulation, such as bruising and the need for repeated attempts.
- Unprofessional manner and attitude.
- Alleged excessive or inaccurate billing.
- Complications of intubation, such as sore throat or injury to vocal cords.
- Aspiration pneumonia following anaesthesia.
- Use of antibiotics containing penicillin when a penicillin allergy had been documented.
- Dental damage occurring at the time of anaesthesia.
- Inadequate postoperative pain relief.
Medical Protection assisted members in writing statements and attending inquests, a number of which involved children.
Assistance was given in relation to inquests touching on perioperative deaths as a result of conditions, including:
- myocardial infarction
- pulmonary embolism
- amniotic fluid embolism
Anaesthesiologists in South Africa – top tips to minimise risk
Please note this is not an exhaustive list of recommendations but key learning points from our analysis.
- Whether administering general or regional anaesthesia, ensure your anaesthetic technique is regularly updated and in line with current best practice, including following relevant SASA guidelines, such that it would be supported by your peers.
- Remember accurate and clear documentation, which often may need to be relied upon years after the event, is the cornerstone of any medicolegal defence.
- Understand your patient’s concerns and expectations, and address any queries they may have.
- Discuss the possible benefits and risks of all potential anaesthetic or treatment options. Consider what is most important to that individual, taking into account their current lifestyle.
- Double-check that the information has been understood and decisions are correctly informed.
- Explain about frequent and serious complications, and the implications for the individual patient if these occurred. Explain what you would do to correct or manage complications.
- Consent, including financial consent, needs to be taken seriously. Steps have to be taken to ensure that the nuances of consent and costs are raised with patients sufficiently in advance of the anaesthetic procedure.
- A thorough assessment of dentition should be documented clearly, along with an indication that the patient has been warned of the risk of dental damage.
- Individuals with risk factors for dental injury, including the presence of loose teeth or dental restorations, or a potential difficult airway, should be warned there is a greater probability of dental damage.
- Ensure observations of vital signs during induction and anaesthesia are performed and clearly documented, and that any abnormalities are promptly considered and acted on as necessary.
- Ensure that monitoring alarms are switched on and set at appropriate thresholds to ensure prompt detection of abnormalities such as hypoxaemia, hypercapnia, brady- or tachycardia and hypo- or hypertension.
- When performing regional anaesthesia, ensure the patient is informed of any sensations they may feel (such as pulling or tugging, but not pain) and be alert to any signs of discomfort intraoperatively to allow swift intervention if necessary.
- Ensure a regional block is working adequately (and documented as such) before allowing ‘knife to skin.
- Some complaints brought by patients or relatives follow dissatisfaction with the manner and attitude of their anaesthesiologist. Pay attention to how you may be perceived during discussions, and ensure time is taken to explain the situation and answer any questions.
- Demonstrate empathy in your consultations, and show your patient that they are the focus of your attention.
- Ensure you are fully indemnified to carry out the full scope of your practice.
Addition sources of information and opportunities for professional development
Visit medicalprotection.org to access these resources
Medical Protection workshops:
- Mastering Shared Decision Making
- Achieving Safer and Reliable Practice
- Mastering Your Risk
- Mastering Adverse Outcomes.
Medical Protection PRISM – online learning modules on a variety of topics, including medicolegal issues, communication and interpersonal skills, and clinical risk management
Medical Protection case reports
Medical Protection factsheets:
- Risks of dental damage during anaesthesia
- Consent – the basics
- Retention of medical records.
South African Society of Anaesthesiologists (SASA)
About the authors
Graham Howarth is Head of Medical Services and leads the service for South Africa. He trained at the University of Stellenbosch before pursuing a career in obstetrics and gynaecology. Prior to joining Medical Protection he was a specialist at Livingstone Hospital in Port Elizabeth and then associate professor at the University of Pretoria. He completed an MPhil (Bioethics) through the University of Stellenbosch and was the founding Head of the Department of Bioethics at the University of Pretoria.
Volker Hitzeroth is a medicolegal consultant and provides advice and support with a variety of medicolegal matters. He qualified as a doctor at the University of Pretoria and went on to qualify as a specialist psychiatrist at the University of Stellenbosch. Prior to moving to the United Kingdom he was in full-time private practice in South Africa.
John Jolly provides advice to help members reduce their risk of experiencing medicolegal cases. He is a former associate postgraduate dean and consultant obstetrician and gynaecologist, having joined Medical Protection in 2015.
Heidi Mounsey is a medicolegal consultant and provides advice and support with a variety of medicolegal matters, including complaints and report writing. She is a former anaesthetic registrar and is a Fellow of the Royal College of Anaesthetists. She joined Medical Protection in 2016.
SASA Airway Guideline REH 1 2014
SASA Practice Guidelines 2018
Howarth GR and Van Zijl DHS, Anaesthesiologists, fees and complaints to the Health Professions Council of South Africa, Southern African Journal of Anaesthesia and Analgesia 21(1):32-33 (2015)