Read this resource to:
• Understand common themes from anaesthesia cases in the UK in which we have supported members.
• Receive tailored advice and key recommendations to help you reduce risks in the future.
While complications resulting in claims following anaesthesia are rare, medicolegal cases are not uncommon due to the significant impact they can have on patients’ lives.
The majority of cases reported to us relate to elective procedures undertaken outside the NHS.
Claims in anaesthesia can sometimes lead to large financial settlements because complications can result in serious and permanent loss of function, for example nerve damage from regional anaesthesia. The value of the settled claim will often include compensation for care and loss of earnings if applicable, in addition to an award for the damage that resulted from a breach of duty. The value of each claim varies enormously with our highest anaesthesia total case payment (claimant damages, costs and legal costs) being in excess of £4 million.
As an anaesthetist you work in a complex and pressured environment. Practising at this level, the stress of a medicolegal case is the last thing you need. This collection is designed to share common themes we’ve seen in cases where we’ve supported anaesthetist members in the UK. Using this experience, we’re sharing advice and recommendations to help you reduce risk in the future.
We have analysed the support we’ve provided UK-based anaesthetists in almost 3,000 cases. In addition to providing advice and assistance in writing medical reports in 1,400 of these cases, we have supported our members in relation to over 1,550:
- Claims, as in demands for monetary compensation that embodies allegations of negligence.
- Pre-claims, which are intimations from a claimant of a possible claim for compensation.
- General Medical Council (GMC) investigations.
- Local disciplinary procedures.
By reviewing all the claims cases, including those defended, not pursued and settled, we’ve identified some of the reasons that patients decide to take action against anaesthetists. Here you’ll also find out explanations of why claims are settled.
Claims: Procedures and contributory factors
The highest number of claims related to dental injury. This included claims for damage to crowns, veneers, bridges and implants, as well as native teeth.
Over half of these claims were not pursued by the claimant following our involvement. In claims that were defended or not pursued, the claimant’s dentition was assessed prior to anaesthesia and the possibility of dental damage was clearly explained and fully documented. This enabled us to provide robust defences to claimant allegations.
Of those settled, the common themes included a failure to obtain a preoperative history on the state of the patient’s dentition and a failure to warn of and document the risks of dental damage.
In some cases, there was evidence that dental damage occurred after the claimant had recovered from anaesthesia, for example, during eating. As a result of good preoperative assessment of dentition documentation, we were able to refute these claims.
The highest total payment made in relation to claims for dental damage was over £30,000.
Spinal and epidural anaesthesia
The majority of the claims were brought in relation to alleged neurological damage sustained at the time of the procedure, which led to ongoing and persisting neurological symptoms such as paraesthesia and weakness to one or more limbs. The highest claim payment totalled over £1 million.
Peripheral nerve block anaesthesia
We identified claims where peripheral nerve blocks led to neural damage, surgical emphysema or inadvertent intravenous injection of local anaesthetic.
In our analysis there were insufficient cases to state whether or not the use of ultrasound or nerve stimulators made a claim more or less defensible. Although there were some allegations that the anaesthetist had failed to conduct the block with the claimant awake, the decision to perform a block with the claimant anaesthetised was generally supported by our experts.
The highest total case payment for a claim relating to peripheral nerve blockade was over £55,000.
Interscalene brachial plexus blocks were the most common site, followed by femoral nerve blocks. Common themes in these claims included:
- Failure to obtain informed consent with respect to risks and benefits, and to clearly document that such a discussion had occurred.
- Failure to use either a nerve stimulator or ultrasound guidance during the performance of the block.
- In cases where a nerve stimulator was used, failure to record sufficient detail, such as loss of twitch on initial test injection of local anaesthetic.
- Failure to record that intravascular injection was unlikely as there was no aspiration of blood. And similarly there being no record of resistance on injection to demonstrate that intraneural injection was unlikely.
Nerve damage due to malpositioning
Some claims were identified containing allegations relating to nerve damage occurring as a result of malpositioning of the anaesthetised patient, or inappropriately applied monitoring equipment such as blood pressure cuffs. These claims were often also brought against other theatre staff members including operating department practitioners and the operating surgeon. The majority of these claims were ultimately discontinued against our anaesthetist members following assistance from us.
The approach taken by solicitors acting for the claimants in many of these cases was that even if the anaesthetist was not the practitioner positioning the patient, they held overall responsibility. While we have successfully disputed that this is not necessarily the case, we would continue to urge anaesthetists to be mindful of a patient’s position and the padding of pressure areas, as it is understandably stressful to be the recipient of a letter alleging negligence under these circumstances.
Awareness during general anaesthesia
A small number of claims in relation to accidental awareness were made, with the majority involving the use of muscle relaxants. Claimants experienced distress at the time of awareness and frequently post-traumatic stress disorders. All awareness claims were settled, with the highest total payment of over £44,000.
Despite a wrong-sided block being classified as a Never Event, which is the kind of mistake that should never happen in the field of medical treatment and is largely preventable, we continue to see claims arising from wrong-sided blocks.
Complaints: Common themes
When we analysed the complaints reported by anaesthetists seeking advice from us, there were some similar themes to the claims, such as dental damage, but also some new themes.
More than 500 complaints were analysed, covering a wide range of concerns and reflecting the different areas in which anaesthetists work. Complaints were received both about NHS work and in relation to procedures carried out in the private sector.
In relation to anaesthesia, complaints included:
- Poor manner and attitude, including rudeness and inappropriate remarks made to patients during preoperative assessment and in the anaesthetic room. Complaints by colleagues relating to the manner and attitude displayed towards other staff members were also made.
- Inadequate postoperative analgesia.
- Ineffective spinal or epidural anaesthesia and complications of postdural puncture headache, haematoma, infection and neural damage.
- Painful or repeated attempts at cannulation.
- Failure to provide adequate sedation.
- Cancellation of surgery.
- Aspiration pneumonia following anaesthesia.
- Failure to obtain informed consent for a procedure, such as a nerve block.
For critical care medicine, complaints often related to discussions with relatives, including allegations of poor communication with respect to treatment withdrawal.
Complaints specifically relating to pain medicine included those relating to a lack of empathy shown during consultations and inappropriate comments by the anaesthetist. Some complaints related to delays in providing treatment, misdiagnosis of the source of pain, and continuation of pain after treatment.
Regulatory (GMC) and disciplinary cases: Common themes
We are aware of the immense pressure and stress that many doctors go through during these investigations. We always aim to provide members with tailored care and expert support.
GMC cases have followed referral from patients, relatives or colleagues, both senior and junior. There was a mix of clinical and non-clinical concerns. Some investigations related to more than one concern or a series of serious clinical incidents. The common themes were:
- Performance concerns, such as technical skills including poor airway management, clinical judgement and communication.
- Probity issues, for example:
- not reviewing patients prior to a theatre list
- leaving anaesthetised patients unattended
- prescribing for family members, colleagues or self
- being unavailable when on call or refusal to attend a patient when requested
- conducting private practice in NHS time
- fraudulent information included on job application forms or appraisals.
- Health issues, including alcohol or drug misuse, and the theft of drugs from hospital premises.
- Inappropriate personal behaviour or misconduct, such as inappropriate comments made to patients, bullying and harassment of colleagues.
- Inappropriate delegation, like leaving inexperienced junior trainees alone.
- Non-clinical issues, including assault, drink driving and shoplifting.
Inquests: Common themes
We have assisted members in writing statements and attending coroner’s inquests. An inquest is a fact-finding exercise that is conducted by the coroner and, in some cases, in front of a jury. The purpose of an inquest is to find out who died – when, where, how and in what circumstances. Our online factsheet about inquests gives further information about what to expect.
Our analysis identified the following themes:
- Failure or disconnection of anaesthetic equipment.
- Delayed or failed intubation.
- Hypotension or hypoxaemia following induction of anaesthesia.
- Complications related to the insertion of a chest drain.
- Incorrect placement of a nasogastric tube into the bronchial tree.
Assistance was also given in relation to inquests touching on perioperative deaths as a result of haemorrhage, including post-partum haemorrhage, sepsis, stroke, pulmonary embolism and myocardial infarction.
We have advised on providing a statement where the anaesthetist was not the primary clinician involved. They had participated in resuscitation attempts taking place in hospital wards, CT scanner rooms and the emergency departments.
In some cases, members were requested by the coroner to write a statement months or even years after the event in question.
Anaesthesia in the UK: 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 such that it would be supported by your peers.
- Remember that accurate and clear documentation, which often may need to be relied upon years after the event, is the cornerstone of any medicolegal defence.
- What really makes the difference in helping to defend a claim is the documentation around the performance of a regional block when using a nerve stimulator.
- Understand your patient’s concerns and expectations, and address any queries they may have. This is especially the case in pain medicine, where a patient may have an unrealistic belief about the outcome that can be achieved.
- 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 employment.
- 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.
- 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, the presence of loose teeth, dental restorations, or a difficult airway should be warned there is a greater probability of damage.
- Some complaints brought by patients or relatives follow dissatisfaction with the manner and attitude of their anaesthetist. 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.
- If performing a peripheral nerve block, ensure the surgical site marking, and the site and side of the block, are double checked before proceeding (see Wrong Site Block in Recommended Standards of Clinical Practice by the Royal College of Anaesthetists).
- Where costs are involved, your patients should be given clear information about all the costs involved and what their rights are to refunds or return of deposits if they change their mind after they have paid some or all of the costs.
- Ensure you are fully indemnified to carry out the full scope of your practice in the UK.
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