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Whose responsibility is it anyway?

Post date: 30/06/2021 | Time to read article: 4 mins

The information within this article was correct at the time of publishing. Last updated 01/07/2021

The nature of teamworking in theatre can make it difficult to identify liabilities in the event of a claim. Dr Emma Green, Medicolegal Consultant at Medical Protection, looks at some of the common causes of claims in this area and what can make them complicated  


Claims arising from non-technical errors in the operating theatre can cause disputes between parties over where the fault lies. Surgeons are reliant on the multidisciplinary team in theatre to ensure that their patient remains safe, but what happens when something goes wrong and who takes ultimate responsibility?

Claims can arise from a number of situations including moving and handling incidents, retained instruments or swabs and intraoperative injuries to the patient, such as diathermy burns. 

This article looks at some of the themes that arise in theatre-based claims and considers the guidance from the relevant regulatory bodies. 

Who is responsible? 

Patient safety is of paramount importance in our practice and is an overriding principle of the duty of care we have to our patients. The surgeon has ultimate responsibility for their patients during the operation, although anaesthetists would be considered responsible for issues with the anaesthetic, airway or equipment relating to the provision of anaesthesia. They may also hold a level of responsibility for moving and handling errors, as well as aspects of care where changes in the patient should be alerted to the surgeon – for example, rising CO2 could indicate surgical emphysema secondary to a perforation.

While hospital staff would usually be responsible for ensuring the correct equipment for the operation is available, the surgeon should be happy that this has been done correctly, particularly if there are specific technical or product requirements. There should also be provision of equipment for potential complications. 

Although the World Health Organisation (WHO) checklist does define equipment issues or concerns under the responsibility of the nursing team, if something goes wrong there will likely be consideration over seeking apportionment from the surgeon as part of the claims settlement process. This can often be a complex legal area where pragmatic apportionment, if breach of duty is found, may be in the best interests of all parties.

More grey areas in claims include medication administration, usually antibiotics or the provision of thromboprophylaxis. This can often be dependent on local policies, and both surgical staff and anaesthetists would be advised to check these policies and flag any areas of concern.

It is important to note this is not a global or defined legal position, as each case would need to be assessed on its individual nuances and merits.

What does the GMC say? 

Good Medical Practice (GMC) states that doctors must take prompt action if you think that patient safety, dignity or comfort is or may be seriously compromised. If patients are at risk because of inadequate premises, equipment or other resources, policies or systems, you should put the matter right if that is possible. You must raise your concern in line with our guidance and your workplace policy. You should also make a record of the steps you have taken.

Claims are often accompanied by comments from members about frequent incidents of equipment failure or problems; it is important that these concerns are raised before a patient safety incident occurs – rather than once a claim has arisen.

WHO checklist 

The Royal College of Surgeons guidance Good Surgical Practice identifies that in order to ensure consistency in patient safety you should be fully versed in the principles and practice of the WHO Surgical Safety Checklist (2008) and its adaptation through the Five Steps to Safer Surgery (National Patient Safety Agency, 2010) and apply those as an essential part of your operating work wherever this takes place, including private practice. Failure to undertake such tasks could be considered a breach of duty and, even if the specific claim does not relate directly to this failure, it may represent a wider problem within the surgical team – making the claim itself more vulnerable.   

While individual hospital trusts and private hospitals may adapt the WHO safety checklist, the fundamental principles are the same. It ensures that all members of the team take responsibility for issues that could impact on patient safety. Failure to complete the checklist could reflect badly on all team members and increase vulnerability to criticism in the event of something going wrong.

Issues such as antibiotic provision, including consideration of allergies and thromboprophylaxis could be discussed as part of the check-in process, as this is a good opportunity for all team members to define their role in both intraoperative and postoperative care. 

Examples of claims 

Retained swabs

Retained swabs and foreign material is a never event but is known to happen. Surgical pathways should ensure that swabs and instruments are counted, and this responsibility is held by the nursing staff. Ensuing disputes have involved the timing of the swab count or the accuracy.

A surgeon should be able to rely on their team to inform them that the count is correct. However, while the responsibility for undertaking and recording the counts is with the scrub nurses, the surgeon must consider whether they have recognised an incident of poor quality care that may compromise patient safety, and if they have spoken out or acted appropriately.   

Equipment failure

Diathermy has been the subject of claims and patients have been harmed through such incidents. Examples include diathermy instruments being placed inappropriately on the patient by a scrub nurse, or where there has been assumed failure of diathermy, but the incorrect implements have actually been attached.

In these situations, it is unlikely that the surgeon can be held accountable, but it is important to consider whether actions in the event are reasonable. For example, repeatedly trying to use equipment that is not working, not speaking out if poor practice is noted or throwing equipment in frustration is likely to result in witness statements that make apportionment decisions unfavourable, despite the surgeon not having the responsibility for setting up the equipment.  


Ultimately the person administrating the antibiotic is likely to be held responsible if any allergies are overlooked, provided they were correctly recorded. However, there may be cases when antibiotics are forgotten or do not comply with best practice. This can be an area where the WHO checklist and team communication plays an important part, as well as highlighting the shared responsibility for error.


It can be difficult to apportion share in claims where a team is responsible for patient care. There may be factual disputes over the issues that have led to the claim, as well as a lack of contemporaneous records on the specific issues raised. Organisations and individuals have responsibility for patient safety and, when something goes wrong, root cause analysis can be useful in identifying both individual responsibility and systems failures.

Each claim should be reviewed on its merit. However, it is rare for a non-technical error surgical claim case to be solely attributable to one party. Surgeons and anaesthetists should be mindful of ensuring that their entire practice, if scrutinised, meets the standard required. Failures to complete paperwork or participate in patient safety briefings are likely to result in claims being difficult to defend.

At Medical Protection, we review each claim in detail and strive to get a fair outcome for our members while recognising the role of the theatre team. The grey areas highlighted in this article are often subject to discussion and dispute, and we strongly advise clinicians to review their local policies and practices.




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