Introduction
About the Author
Dr Heidi Mounsey is a medicolegal consultant and assists members in relation to many of the matters outlined in this booklet. She is a former anaesthetic registrar and is a Fellow of the Royal College of Anaesthetists. She joined Medical Protection in 2016.
General surgery encompasses a huge range of sub-specialties, including breast, colorectal, endocrine, upper gastrointestinal, bariatric, transplant, and vascular surgery.
Surgeons are increasingly using laparoscopic techniques for a variety of general surgical procedures. Complications following surgery are rare, however medicolegal cases are not uncommon due to the significant impact they can have on patients’ lifestyles.
The majority of cases reported to us relate to elective surgical procedures undertaken outside the NHS. Patients who opt for elective surgery can choose to proceed with it at any time, or not at all.
Clinical negligence claims in general surgery can sometimes lead to large financial settlements. The value of the settled claim will often include compensation for care and loss of earnings, in addition to an award for damages resulting from a breach of duty. Complications can result in permanent damage or serious loss of function, and this sees the value of claims vary enormously. Our highest general surgery case payment during the time period considered in this report (including claimant damages, costs, and legal costs) was over £1 million.
In addition, COVID-19 meant there was a significant change to the way in which many doctors worked, including severe disruption to elective surgery within the NHS, and we saw a large number of individuals contacting our medicolegal helpline for advice and support.
Issues arising as a consequence of COVID-19 included the prioritising of scarce resources, concerns over staffing levels, COVID-19 vaccinations (including in relation to doctors who did not wish to be vaccinated and also those who had fraudulently obtained vaccinations for themselves or their family ahead of schedule), management of patients who refused to wear a mask, and worries about personal risk of exposure. Medicolegal cases where COVID-19 is cited as a factor are ongoing and it is likely the impact will continue to be felt for some time.
We understand you work in complex and often pressured environments. We also know, following feedback from members, that experiencing a medicolegal case can be incredibly stressful. At Medical Protection we want to share our knowledge, experience, and expertise with you so we can provide invaluable professional support.
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Analysis
We’ve analysed the support we provided UK-based general surgery members in over 1,400 cases. This included a variety of matters, such as:
- Claims – as in demands for monetary compensation that embodies allegations of negligence.
- Potential claims – intimations from a claimant of a possible claim for compensation.
- Complaints.
- General Medical Council (GMC) investigations.
- Local disciplinary procedures.
- Inquests.
- Reports.
Figure 1: General surgery procedures leading to patients making a claim and common contributory factors.
We have studied all claims, including those defended, not pursued, and settled. We feel sharing our learnings about why patients decide to take action – and the reasons why claims are settled – is valuable.
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Claims: procedures and contributory factors
Open and laparoscopic hernia repairs, including mesh repairs
A significant number of claims related to hernia repair surgery. Claimants suffered complications including chronic pain, damage to testicles leading to atrophy, obstructed or perforated bowel, bladder damage, nerve damage, peritonitis, or necrotising fasciitis. In some cases, further surgery was required, such as bowel resection, ileocolic anastomosis, or ileostomy.
While in some cases the surgery itself was alleged to have been performed in a negligent manner, leading to injury of other structures, in a large number of these claims it was alleged that the pre-operative consent process was inadequate and that claimants were not fully informed of the potential risks and benefits of the procedure. This was particularly seen in cases where chronic pain was alleged to be a consequence of mesh insertion.
In our analysis, it was identified that in a number of settled claims there was failure to warn of possible complications or provide information on the alternatives to the procedure. There was evidence of inadequate consent regarding explaining risks of chronic pain or discomfort, recurrence of the hernia, and mesh complications requiring further surgery, such as separation or removal of the mesh.
Our highest total case payment, where failure to obtain informed consent was considered to be a factor in the need to settle the claim, was in excess of £150,000.
Bariatric surgery
Claims involving bariatric surgery included gastric bypass, gastric banding, and insertion of gastric balloons. Claimants suffered complications, such as tearing of the band at the time of insertion, leading to leaks, injury to the stomach, pancreas or bowel, infection, and erosion of the band into other structures.
The majority of claims alleged that the surgery itself was negligent, although in some cases it was alleged that the choice of surgery was incorrect (for example, recommending gastric banding rather than gastric bypass) and that the consent procedure was inadequate.
Further allegations related to post-operative care and failure to recognise complications early, leading to a delay in returning to theatre and prolonged recovery time.
Other claimants experienced complications relating to their gastric bands not functioning, band erosion, or recurrent infections – particularly at the port sites. Some patients returned within one to two years due to a lack of weight loss or gastrointestinal symptoms, and on occasion further surgery was required to diagnose and correct band slippage, migration, or erosion.
Notably, with respect to bariatric surgery claims, there were a number of allegations of inadequate follow up, leading to symptoms of nausea, vomiting, pain (gastric bands), and permanent neurological impairment as a result of vitamin and mineral abnormalities (gastric bypass). This included failure to review or adjust post-operative zinc supplementation, leading to copper deficiency, and ultimately resulting in subacute combined degeneration of the cord.
During the time period under consideration, our highest total claim payment for bariatric surgery was in excess of £200,000.
Cosmetic breast surgery
Claims often came from cosmetic breast surgery related to augmentation and mastopexy. Many patients alleged unsatisfactory results, including asymmetrical breasts, scarring, infection, or dissatisfaction with the position of their nipples. In some case this led to depression, feelings of disfigurement, or back pain.
In many of the claims that were settled, there was evidence of insufficient history-taking, leading to inappropriate decision-making along with inadequate consent, including failure to discuss possible implant rupture and the consequences, and failure to discuss the potential impact on breast-feeding should the patient wish to undertake this at a future time.
An ongoing theme was of a failure to manage expectations with respect to the possible outcomes. In some cases, patients had already undergone a number of procedures, either performed by the same surgeon or by another practitioner, where they were unhappy with the outcome. In these situations, further revision surgery often still left patients unhappy with the appearance of their breasts.
During the time period considered, the highest total case payment relating to cosmetic breast surgery was approaching £100,000.
Laparoscopic cholecystectomy
Claims made in relation to laparoscopic cholecystectomy again frequently contained allegations of negligent technique leading to bile duct or hepatic duct injury.
In some cases, post-operative care was criticised, including delays in diagnosis and management of surgical complications, and sepsis. Some patients required further surgery, including the need for laparotomy.
Alleged lack of informed consent also featured in a number of claims, with claimants stating they had not been made aware of the possible risks of the procedure or how likely these were to occur.
Our highest laparoscopic cholecystectomy total case payment was in excess of £280,000.
Case study
This case is based on a real scenario, with some facts altered to preserve confidentiality.
Following two episodes of acute cholecystitis, a 41-year-old woman attended a consultant general surgeon privately for consideration of a cholecystectomy.
The surgeon recommended a laparoscopic cholecystectomy and advised the patient of the risks of conversion to an open procedure, bleeding, bile leak, and infection. Consent was taken on the same day as the surgery.
During the operation, the gallbladder was found to be very inflamed, and multiple adhesions were identified. The adhesions were divided, and the gallbladder was ‘removed with great difficulty’. A drain was sited, and antibiotics prescribed.
The operation notes were sparse but mentioned that the anatomy had been difficult to define, and adhesions had been dense.
Over the next three days, there continued to be bile leakage into the drain. This was considered to be arising from the liver surface rather than a bile duct injury. The patient complained of left upper quadrant pain, nausea, and vomiting. No jaundice or fever was noted. A tachycardia was identified but this was considered to be due to pain.
An ultrasound was performed on the fifth post-operative day. This revealed free fluid in the pelvis of 5cm in depth, and no fluid collection within the gallbladder fossa. The common bile duct was noted to measure 4.1mm with no intrahepatic biliary dilatation.
As bile drainage was negligible at this point, the drain was removed, and the patient discharged. Observations taken shortly before discharge identified that the patient’s temperature was 38°C, and her heart rate was 102 BPM. Her CRP had risen from the previous test taken two days previously, but was still lower than it had been on the first post-operative day.
Five days following discharge (ten days post-operatively), the patient re-presented with worsening upper abdominal pain and increasing tachycardia, along with a temperature of 38.2°C. Her CRP was markedly raised.
The operative surgeon suspected a biliary leak. A CT scan demonstrated a pelvic collection and a small amount of fluid around the right lobe of the liver. On US guided aspiration 110mls of green-tinged straw-coloured fluid was aspirated. The patient’s symptoms continued, and a diagnostic laparoscopy was performed, revealing 700ml of bilious fluid in the right side of the abdomen. The abdomen was washed out and a drain placed.
Bile continued to drain, and the patient was transferred to a hepatobiliary unit. Three weeks following the original surgery, the patient underwent a laparotomy and bile duct exploration, where it was discovered that the right anterior bile duct had been divided and clipped. A hepaticojejunostomy was performed and the patient made a good recovery after this.
The patient brought a claim against the surgeon who had performed the laparoscopic cholecystectomy, alleging failure to correctly identify the structures in the triangle of Calot, failure to convert to open cholecystectomy, failure to correctly identify the right anterior bile duct, and instead mistaking it for the cystic duct, and subsequently clipping and dividing it.
It was alleged that had the surgeon proceeded to open cholecystectomy, the structures would have been identified correctly and the patient would not have suffered the bile leak and the requirement for further surgery. She sought compensation for the pain and suffering she had endured, additional scarring and risk of incisional hernia, and the risk of adhesions requiring further surgery.
An expert report obtained during the investigation of the claim was critical of the surgeon for the following reasons:
- The consent process and the surgery took place on the same day – as this was elective surgery the patient should have been provided with an opportunity to consider her options.
- Further, although some serious and frequently occurring risks (including bile leak) were discussed, the possibility of bile duct injury was not. It was stated by the expert that a bile leak could not be held to be synonymous with a bile duct injury.
- The operation notes were very limited, and it was not clear whether the anatomy was fully identified and whether dissection was in line with good practice.
- In the event the surgeon was struggling with identification of structures due to dense adhesions and inflammation (as suggested by the operative note), the procedure should have been converted to open. Alternatively, a retrograde or sub-total cholecystectomy could have been considered.
- While the expert was sympathetic to anatomical variation of the biliary tree, and that the patient’s anatomy may have been particularly unusual, on balance of probabilities they considered that the surgeon had failed to identify the anatomy correctly in this case, leading to the right anterior duct being clipped and divided, rather than the cystic duct.
- It was considered this error would have been avoided had the procedure been converted to an open cholecystectomy.
- On that basis, the patient would have avoided the bile leak, and the need for further surgery.
The claim was settled for a total cost of approximately £150,000.
Learning Points
If the anatomy is unclear or other difficulties are experienced during laparoscopic surgery, consideration should be given to converting to an open procedure.
It is difficult to investigate and defend any subsequent claim arising from the performance of a surgical procedure where the documentation is limited or incomplete.
The consent process should allow patients time to consider their options, and ensure that all serious and frequently occurring risks are discussed.
Common themes
Patient complaints
We have analysed the complaints where we’ve supported general surgeons, including complaints arising from the NHS and private practice.
These were quite varied and sometimes related to multiple concerns. Most of the complaints were from patients, but some were from other healthcare professionals.
The common themes were:
Poor communication, manner, and attitude during a consultation, including rudeness, abruptness, racist remarks, lack of empathy, and disregard for concerns raised by patients. Complaints raised by colleagues also related to communication, such as junior doctors citing dismissiveness and refusal to accept referrals.
Inappropriate or unnecessary intimate examinations, on occasion without a chaperone present.
Unexpected outcomes following surgery. This was often triggered by dissatisfaction with the consent process, including inadequate discussion of risks and treatment options. This was particularly the case when the procedure was cosmetic in nature.
Failure and delays to diagnose post-operative complications, including delays in identifying bleeding, peritonitis, and obstruction.
Delay in the diagnosis of cancer, or providing reassurance that cancer was not present in the absence of appropriate investigations.
Regulatory (GMC) and disciplinary investigations
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 and disciplinary 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 clinical incidents. A number of cases arose from patient complaints where either the patient was dissatisfied with the complaint response received or concurrently raised concerns with the GMC.
The common themes were:
- Performance concerns, such as operative skills, including a higher than expected rate of complications, not being capable of operating independently, and clinical judgement such as choice of surgical procedure.
- Poor communication, for example abrupt or dismissive manner during consultations.
- Bullying and harassment of junior colleagues or other staff members. Refusal to attend hospital to assist junior colleagues when on call.
- Probity issues, for example performing private practice in NHS time.
- Inappropriate delegation or supervision.
- Health issues, such as misuse of alcohol or drugs.
- Failures or delays, for example in diagnosing malignancy, recognising and acting on postoperative clinical deterioration, or treating sepsis or bowel obstruction.
- Issues arising from personal conduct, such as domestic violence, misuse of social media, and driving offences.
In the absence of representation by a defence organisation, the cost of instructing a solicitor to assist with a regulatory or disciplinary matter can be significant. For example, the costs incurred on one of the cases considered during this time period was in excess of £180,000.
Inquests
We assisted members in writing statements and attending coroners’ inquests on over 200 occasions between 2016 and 2022. 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 inquest factsheet contains further information about what happens at an inquest.
Our analysis identified the following themes:
- Delay in diagnosis of malignancy.
- Delay in diagnosis of bowel obstruction.
- Ruptured aortic aneurysm – in some cases, patients died prior to any operative intervention.
- Complications of bowel surgery resulting in death, including anastomotic leaks, peritonitis, bowel perforation, ischaemia, necrosis, obstruction, and injury to major blood vessels.
- Other complications of surgery, including pneumonia, sepsis, intracerebral haemorrhage, thrombosis, intra-operative death, wound dehiscence, and pancreatitis.
Reports
Assistance was provided in over 300 report case types, including serious untoward incident investigations held by NHS Trusts. A number of these cases later led to inquest following the death of the patient.
Similar themes were identified to the inquest cases, but other areas analysed included:
- Production of a report for the police, e.g. following attendance of the patient in the emergency department for alleged assault, including stabbing.
- Delays in accessing investigations such as CT scans.
- Requests for statements to comment on the practice of a colleague undergoing investigation.
- Statements for clinical negligence claims brought against the trust.
Criminal matters
Where criminal allegations were advanced towards general surgeons, they predominantly related to inappropriate touching or sexual assault of patients. Although many of these were closed without proceeding to a criminal charge or to court, allegations of this nature often lead to disciplinary or regulatory action, as well as investigation by the police.
Never events
We continue to see cases arising from wrong site surgery and retained swabs.
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General surgery in the UK: top tips to minimise risk
Please note this is not an exhaustive list of recommendations, but some key learning points from our analysis:
- Ensure your surgical technique is regularly updated and in line with current best practice such that it would be supported by your peers.
- Ensure you are fully indemnified to carry out the relevant procedure in the UK.
- Ensure close monitoring takes place after surgery and any deterioration is managed in a timely and appropriate fashion.
- Listen to what your patient would consider to be a successful outcome. Understand and explore their concerns and expectations. Demonstrate empathy throughout your consultations.
- Discuss the possible benefits and risks of all potential treatment options, including non-surgical management or no treatment. Consider what is most important to each patient, taking into account their current employment and personal interests.
- Be honest and let your patient know if the surgery is unlikely to give them the result they want.
- Explain what the procedure will involve, the likely outcome and recovery period, and when you’ll see them afterwards.
- Explain frequent and serious complications (even if the serious complications are rare) and the implications for the patient if these occur. Explain what you would do to correct complications or if you failed to meet their expectations. Document these discussions.
- Be explicit about the risks of laparoscopic surgery. When a patient is expecting small scale surgery and experiences a major complication, they may wish to pursue a claim.
- Double-check that the information has been understood and decisions are correctly informed.
- Ensure accurate and clear documentation. This may need to be relied upon years after the event and is the cornerstone of any medicolegal defence.
- Never pressurise or rush patients into giving consent to have surgery (for example, by offering discounts or special offers that are for a limited time only).
- For elective operations always leave sufficient time (at least a week) after the consultation before scheduling the procedure. This allows the patient time to think things through, talk to their family, or access more information.
- When the procedure or consultation is on a private basis, your patients should be given clear information about ALL the costs involved, and what their rights are to a refund/return of deposit if they change their mind after having paid some or all of the costs.
- When things go wrong, the vast majority of patients just want two things: an explanation and an apology.
- Be open and honest with patients and their families. Be welcoming, listen to feedback, and address concerns promptly and in the spirit of co-operation.
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