In a new series for Independent Practitioner Today, Dr Claire Wratten analyses clinical negligence claims in private practice and offers advice on managing risk.
This month: Anaesthetists
Medical negligence claims in anaesthetics are relatively uncommon, but, of course, if you are facing a claim, it can be very distressing.
At the MDU, our expert claims handlers and medico-legal advisers understand how stressful this can be and the importance of mounting a robust defence of your position.
In our experience, common causes of claims against anaesthetist members working in independent practice include dental damage, which accounted for a third of all notifications, drug errors or adverse reactions, and needle misplacement.
While few cases result in compensation being paid, it is nonetheless better to avoid a claim altogether.
This article looks at the main themes cited in 170 clinical negligence claims notified to us by members and suggests way to manage medico-legal risk factors.
Compensation costs millions
In almost three-quarters of cases reviewed (73%), the claim was successfully defended without any payment of damages or claimant legal costs.
Of cases settled, compensation payments ranged from under £1,000 to over £2.6m. The average cost of each settled claim was well over £100,000, with some claims resulting in compensation payments of over £1.5m each.
The size of the compensation does not reflect the magnitude of the clinical error, but rather the injury to the patient.
If the person can no longer work and requires a significant level of care, then considerable sums may be paid. For example, neurological injury or spinal cord damage leading to significant disabilities.
Reasons for claims
The risk of damage to teeth and dental work when using a metal laryngoscope is well known and was the primary reason for the claim in a third of cases analysed.
Risk may be greater where the intubation is particularly difficult, either for anatomical reasons or because of circumstances.
Difficult intubations cannot always be anticipated and, in an emergency setting, securing the airway as quickly as possible may sometimes be necessary even at the expense of damage to teeth. Dental damage in such situations is not necessarily negligent.
In cases where compensation was paid, the average amount was around £5,000. However, some claims totalled over £20,000 due to the need for extensive dental restoration work or dental implants.
Drug reactions and errors
Drugs routinely used by anaesthetists have many potential dangers, so it is notable that few claims – just 17% – arose from drug errors or adverse drug reactions.
Many claims involved the prescription of a drug to a patient with a known allergy. For example, over £350,000 in compensation and legal costs was paid to a patient with a penicillin allergy who was given amoxicillin during a hysterectomy and had a severe allergic reaction.
While such incidents are uncommon, the majority of incidents could be avoided had standard checks been undertaken.
Claims due to needle misplacement accounted for 12% of cases. Allegations included compartment syndrome following an injection, nerve damage caused during nerve block procedures and injuries to the spinal cord during epidurals.
Because of the potential for patients to have life-changing injuries as a result of these incidents, compensation payments can be high with some claims resulting in compensation well in excess of £1m being paid.
In one such case, a claim was settled after it was alleged the patient should have been informed of the possibility of severe paralysis. The consent form signed by the patient made no reference to this known but rare risk.
Awareness during anaesthetic
Awareness, which covers a whole range of experience, only factored in a small number of notified claims in our analysis (6%), and the majority of cases were successfully defended. Where cases settled, the damages resulting were relatively low – generally under £30,000.
Awareness claims can arise regardless of the technique used, whether balanced anaesthesia with relaxant and inhalation agent or total intravenous anaesthesia.
Brain damage or death
Brain damage or death is thankfully a very rare outcome in the claims we analysed, occurring in 6% of notified cases. However, it is worth noting that serious adverse outcomes do occasionally occur and patients need to be offered relevant information in order to provide informed consent.
Examples included airway obstruction leading to hypoxia, coagulopathy resulting in haemorrhage then hypovolaemia leading to cardiac arrest and anaphylaxis leading to cardiac arrest. One case settled for more than £2.6m in compensation and legal costs.
Damage to airways and other internal organs
The soft tissue structures of the oropharynx, nasopharynx and trachea may sustain instrumental injury, which occurred in 3% of cases. These cases rarely resulted in settlement and where they did, the amount paid was usually very modest.
One claim involved the perforation of a patient’s oesophagus due to an orogastric calibration tube being inflated after having been placed incorrectly by the anaesthetist in the oesophagus during a gastric band procedure.
The patient alleged that he was not adequately informed of the risk of this injury and would not have consented to the procedure had this been brought to his attention.
The risks to anaesthetised patients of sustaining pressure damage or nerve palsies as a result of positioning on the operating table are well known, although there were only 3% of notifications in this category and few resulted in compensation being paid.
Allegations that the consent procedure was inadequate feature in many of the claims being made against anaesthetists, but in 2% of cases this was the prime focus for the claim.
Commonly, it was alleged the risks of a procedure were not adequately explained. However, none of the claims which centred solely on this issue were settled.
Recently updated GMC guidance on Decision-making and consent places greater emphasis on doctors and patients taking decisions together based on exchange of relevant information specific to the individual patient.
Manage the risk
Claims involving anaesthetists can arise for a wide range of reasons and very few cases result in compensation being paid.
Nonetheless, there are steps you can take to manage common risk factors and reduce the risk of misunderstandings which can lead to a claim, as explained in the box on the right.
While the number of claims brought against anaesthetists while working in private practice has not increased significantly in the past few years, the cost of claims has spiralled.
This is not due to worsening clinical standards but to a deteriorating legal environment which the MDU is campaigning to reform. You can see more at www.themdu.com/faircomp.
Dr Claire Wratten (right) is senior claims handler at the Medical Defence Union