Clinical negligence claims against ear, nose and throat surgeons in private practice are explored here by Dr Gemma Taylor and Greta Barnes – and they offer advice on managing risk in this specialty.
A claim for clinical negligence can be brought at any time, often without warning and sometimes many years after the incident occurred, which can be extremely distressing for an ear, nose and throat (ENT) surgeon.
Many factors can affect the likelihood of a claim being brought against an ENT specialist, including the extent of their private practice and their individual case mix.
But, broadly, an ENT consultant working privately can anticipate being on the receiving end of a claim about once every ten years.
This article focuses on an analysis of a cohort of more than 100 clinical negligence claims recently brought against ENT surgical members working in independent practice.
In 75% of claims reviewed, the claim was successfully defended without any payment of damages or claimant legal costs.
Reasons for claims
The reasons for ENT claims range from post-operative pain or scarring to severe complications resulting in significant further treatment, trauma and in some cases, the patient’s death.
The key themes of claims are:
Dissatisfaction with outcome
ENT procedures performed for cosmetic reasons, such as septoplasties and rhinoplasties, can result in claims of dissatisfaction with the final aesthetic result.
Numerous claims arose from patients alleging a lack of improvement or worsening of their symptoms, such as breathing difficulties, snoring, sleep apnoea and sensory loss affecting taste, smell and hearing.
These claims will usually involve the cost of refunds, second opinions, revision surgeries and psychological therapy.
One third of the cases alleged inadequate consent, with a focus on failure to discuss risks of complications and failure to warn that symptoms may not be improved.
A thorough consent process is paramount in order to manage a patient’s expectations of a procedure, including balancing the potential risks and benefits.
Claims can be defended where a thorough and detailed discussion with the patient takes place and is well-recorded in the notes.
Other cases alleged that the treatment provided was unnecessary or incorrect in the circumstances or that more conservative treatment options, including medication or no treatment, should have been tried or reviewed with the patient.
Several claims focused on alleged poor operative technique, during the course of the procedure. Such issues included:
Diathermy burns causing scarring or nerve damage;
Dental damage or loss of teeth;
Perforations such as of the septum or oesophagus;
Nerve damage and bone damage such as cracking of the orbital plate;
Severe bleeding and stroke.
In 40% of cases, postoperative complications were the reason behind a claim against an ENT surgeon. Some cases involved known complications such as pain, nausea, dizziness, scarring, poor healing, infections and mild to major sensory loss.
Neurological damage was seen in several cases. For example:
Nerve damage causing muscle paralysis and reduced arm function following excision of a neck lesion;
Swallowing and speech difficulties after the laryngeal nerve was damaged during a thyroidectomy;
Subarachnoid haemorrhage following revision sinus surgery;
Stroke after a septoplasty;
Brain infections or meningitis necessitating further procedures and a poor outcome for the patient.
Delayed diagnosis or referral
Allegations of delayed diagnoses or referral were also common. The diagnoses allegedly missed or delayed included:
Sensorineural hearing loss;
Post-operative infections or haematomas;
Cancers of the tonsil, skin, nasopharynx, oropharynx and larynx;
Dr Gemma Taylor (right) and Greta Barnes (far right), are senior claims handlers at the Medical Defence Union