Dr Peter Mackenzie, Head of Membership Governance at MPS, looks at the reasons why claims in a range of surgical specialties are settled
This is the second in a series of articles looking at feedback from clinical negligence claims brought against MPS members across the world. This article highlights learning points from more than 800 such claims settled over the last four years on behalf of our members practising worldwide in a range of surgical specialties.
As the number and size of claims continue to rise around the world, almost one in five requests for assistance from MPS members now arise from litigation. You may not be surprised to hear that for surgeons that figure is higher and nearer one in three requests.
"Almost one in five requests for assistance from MPS members now arise from litigation – for surgeons that figure is higher"
Approximately half of surgical claims were settled because of problems relating to surgical technique (fairly equally spread between inadequate performance, causing collateral damage and poor cosmetic outcome) – the other half related to pre and postoperative issues.
More worryingly, 44/805 (5.5%) of the settled claims relate to “never events” (wrong site surgery or retained equipment). “Never events” can be defined as “serious, largely preventable patient safety incidents that should not occur if the available preventative measures have been implemented”.1
"Surgeons should focus both on their surgical skills and on ensuring they periodically perform risk management assessments of their clinical support systems"
To help reduce the chances of being sued, surgeons should focus both on their surgical skills and on ensuring they periodically perform risk management assessments of their clinical support systems – such as chasing up pathology tests that have been ordered, or properly documenting risks of procedures in the patient’s records.
At MPS, we capture the reasons for recommending settlement to our members on each clinical negligence case.2 For the purposes of this article, we have reviewed all those claims brought against our surgical members, worldwide, where we have had to recommend settlement since December 2007.
For reasons of commercial sensitivity, this article does not include information about the size of different specialty groups, so comparisons of relative claims rates between specialties cannot be made.
MPS has recommended settlement on 805 surgical claim cases, worldwide, from members working in 29 different countries since December 2007. The value of each claim varies enormously from £120 through to our highest surgical claim case (at the time of going to print) of £5.4 million.
It should be remembered that this study looks primarily at frequency of reasons for settlement and that in terms of subscription setting for our members, the claim costs are an extremely important additional feature. The distribution of the 805 claims by specialty can be seen in Chart 1.
Chart 1: Number of surgical claim settlements worldwide by specialty
About half of claims settled on behalf of surgeons can’t be defended because of non-operative issues such as record-keeping, lack of follow-up, or not having adequate systems in place to chase up pathology tests ordered. We recommend all surgical members undertake regular reviews of their clinical support systems through risk assessments to help reduce these non-operative events from happening.
"We recommend all surgical members undertake regular reviews of their clinical support systems"
The commonest occurring contributory factor for deciding to settle claims is because of concern over the surgical technique used by the member (see Chart 2).
We note, however, that for plastic surgeons, inappropriate surgery is a more commonly occurring code than for other surgical specialties. This appears intuitively correct. Nevertheless, contributing factors to the settlement of plastic surgery claims include issues surrounding consent, postoperative care and choice of procedure.
Chart 2: Reasons for settlement
This occurs as a contributory factor in the reason for settlement in nearly half of all surgical claims and up to 62% depending on specialty. We studied in more detail a randomised sample of 100 of those claims. The reasons for concern over surgical technique can be broken down into six further causes:
- inadequate performance – 34%
- collateral injury – 27%
- cosmetic quality – 24%
- retained equipment – 8%
- incomplete procedure – 4%
- choice of implant – 3%
- Inadequate performance
Inadequately performing surgical procedures affected virtually all the surgical specialties and simply meant that the particular method the surgeon had adopted couldn’t be fully supported by his or her peers. Examples include not converting to an open cholecystectomy following significant blood loss in a patient with dense adhesions or poor suturing technique following a breast augmentation procedure.
Risk management point 1
Ensure you perform a sufficient number of surgical procedures so as to maintain your skill level. If you were to experience difficulty in a procedure, is help available?
- Collateral injury
Of particular interest are the 27% of settlements where some form of collateral injury has occurred. One third of these cases involved the use of some form of endoscope. Around a quarter of the collateral injury reasons involved laparoscopes; 6% endoscopes. Again, the range of surgical procedures involved fell across the breadth of surgical specialties varying from corneal burns during eyelid surgery, injuries to peripheral nerves during fracture manipulations and perforation of the bowel during liposuction.
Risk management point 2
When using any form of invasive scope, you will be expected to have discussed the specific risks of collateral injury with your patient as part of the seeking of valid consent. Do you have a sufficiently broad field of vision and can you interpret the anatomy correctly?
- Cosmetic quality
Of those surgical technique cases settled because of an unsatisfactory cosmetic quality (the inference being the underlying technique was not satisfactory), all of these occurred in plastic/cosmetic practice. Nearly half were breast procedures and a third were facial operations. This reminds us to ensure patients having any form of surgical procedure (but in particular cosmetic procedures) must be allowed to make fully informed choices, and do not have unduly high expectations of outcome.
Risk management point 3
Ensure you have properly assessed your patient’s expectations of the proposed surgical procedure and addressed any unrealistic outcomes. You must always ensure you have obtained and documented valid consent and advised your patient of the risks of the procedure they face. You should decide whether it is still appropriate to proceed if the patient remains unrealistic in his or her expectations.
What are the experiences of surgeons working elsewhere in the world where MPS does not operate?
In Canada, for example, the CMPA (Canadian Medical Protective Association) reports that performance and diagnostic issues were the most problematic with preoperative evaluation sometimes leading to performing an inadequate procedure or failure to offer alternative treatments (Chart 3).3
"In Canada, the CMPA reports that performance and diagnostic issues were the most problematic"
For general surgeons, the CMPA reports that common bile duct and vascular injuries during cholecystectomy were the most common issue. Damage to nerves and spinal cord were most frequent for orthopaedic surgeons. Consenting problems were encountered in 21% of all cases. These experiences are broadly similar to ours.
Chart 3: How Canada compares
Our results highlight that issues around surgical technique are the commonest contributory factor for settling claims on behalf of our surgical members worldwide, with problems over inadequate surgical performance and collateral injury being particularly important. This highlights the importance of ensuring that surgical technique is regularly updated and in line with current best practice such that it would be supported by one’s peers.
We have found that over half of claims that need to be settled on behalf of our surgical members are for reasons not directly related to surgical technique, such as issues surrounding consent or poor record-keeping. It is therefore extremely important for the surgeon to regularly review his clinical systems to help improve his treatments and thereby indirectly help his patients.
"Over half of claims that need to be settled on behalf of our surgical members are for reasons not directly related to surgical technique, such as issues surrounding consent or poor record-keeping"
Even the best surgeon in the world would still need to have claims settled on his behalf if his administrative or clinical support systems are found wanting. Claims due to concerns about cosmetic outcome remind us that managing patient expectations and addressing unrealistic expectations is an important factor in reducing the risk of claims, particularly in plastic/aesthetic specialties.
Asking the patient what would be a “good outcome” for them if they undergo the surgical procedure will help identify whether the patient’s expectations are realistic and achievable. Patients increasingly want to be involved in decisions about their care as part of a shared decision-making process.
"When things go wrong, it is important to investigate, explain and apologise"
Patients who have been involved in a discussion about the advantages and disadvantages as well as the risks (including collateral injury) involved will have fewer grounds for a successful claim should an adverse outcome occur, particularly if these have been documented.
The overwhelming majority of healthcare is delivered to a high standard. When things go wrong, it is important to investigate, explain and apologise. Where substandard care results in avoidable harm, there should be an appropriate level of compensation. Every adverse event should be used as an opportunity to learn and improve care.
For reasons of confidentiality, some facts have been changed in this case.
14/01/07 – 40yr patient presented with a 2-week history of intermittent right loin pain with associated haematuria. Investigation revealed a 2.5cm right renal stone. Patient advised to undergo percutaneous nephrolithotomy. Patient went home to consider advice.
25/01/07 – Patient re-presents with acute attack and requests PCNL. Patient otherwise fit. All appropriate blood tests taken preoperatively and the anaesthetist informed. Patient taken to theatre and general anaesthetic commenced. Nobody at that point had reviewed the preoperative blood tests results as they were not yet available. Urologist inserts ureteric catheter into left kidney via cystoscope. Patient becomes haemodynamically unstable. Cardiac arrest. Patient successfully resuscitated initially but remained unstable. Transferred to ITU.
"If you organise tests on a patient, ensure you have adequate clinical systems in place to review them"
26/01/07 – Patient dies. The postmortem was inconclusive. Cause of death classified as cardiac failure. It is alleged that neither doctor ensured the patient was sufficiently prepared preoperatively before the procedure went ahead. The preoperative blood results showed low haemoglobin of 7.4 and abnormal liver function tests, the causes of which were both unknown. The exact causation of the patient’s demise is unclear. Cardiac instability may have occurred due to some underlying pathology, which had not been diagnosed preoperatively in combination with the anaesthesia.
In view of the grossly abnormal blood tests, which had not been reviewed prior to surgery, a settlement was reached.
If you organise tests on a patient, ensure you have adequate clinical systems in place to review them.
- The reason for settling a claim we record as a “Root Cause of Settlement” (RCS) code. We currently have 38 different such codes. There may be more than one RCS code per case and there may be more than one member recorded as involved in each case. For this reason, all of the statistics that follow have been adjusted so that where more than one RCS code is stored on a claim the codes are weighted so that the total value of codes per claim add up to 1.
- Courtesy of the Research Department and Elise Amyot at the Canadian Medical Protective Association.
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