Claims made against MDU anaesthetist members in private practice are examined here by Dr Claire Wratten and Peter Renwick and they explain how risks can be minimised.
Facing a claim can be very upsetting. The MDU’s expert claims handlers and medico-legal advisers understand how stressful this can be and are available to provide advice and support should the need arise.
This article is based on an analysis of almost 200 clinical negligence claims made against MDU anaesthetist members working in private practice.
Common causes of claims included dental damage, drug errors or adverse reactions, needle misplacement and anaesthetic awareness.
There were also claims relating to significant brain damage or death of the patient and in those cases, damages claimed can be substantial (see box on page 26).
But in 78% of cases reviewed, the claim was successfully defended without any payment of damages or claimant legal costs.
Twenty-three per cent of all anaesthetic claims related to damage to teeth and/or dental work during intubation, with damage to crowns, bridges and veneers being very common.
The risk of damage when using a metal laryngoscope is well known. Claims also arose due to the use of endotracheal tubes and laryngeal mask airways.
The risk may also be greater in the case of a difficult intubation, 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 will be the priority even at the expense of damage to teeth.
Dental damage is not necessarily negligent and, in 89% of these cases, we were able to defend the actions of our members without making any compensation payments.
Of those claims that were settled, the majority were settled for a modest amount, though two cases were settled for over £20,000 due to the need for extensive dental remedial work or dental implants. However, these figures are for damages only and the MDU would have also paid claimant costs.
Medical records can be critical to the successful defence of a claim, which might be brought months or years after the incident.
When an assessment has been made of the upper airway, dentition and other factors, this should be clearly documented, along with a record of any warning of possible complications given to the patient.
Drug-related concerns accounted for almost 17% of cases.
The most common issue was an allergic or adverse drug reaction, with the most common culprit being antibiotics.
Other claims arose following acute kidney injury, allegedly consequent on either prescription of non-steroidal anti-inflammatories or failure to stop ACE inhibitors.
Claims were also made following alleged prescription errors. The most common concern was excessive prescription of drugs, in particular opioids, but other claims including excessive doses of prophylactic anticoagulation resulting in bleeding.
Two claims were brought following allegedly inadequate post-operative pain relief.
Twenty-seven per cent of claims in this category were settled on behalf of the MDU members, with the damages paid ranging from a few thousand pounds to almost £300,000 in a case in which the claimant developed chronic fatigue following an allergic reaction during anaesthesia.
While in some cases the reaction was unexpected, in others a careful history would have identified the potential for an adverse or allergic drug reaction and the issues could have been avoided.
Brain damage or death
Almost 11% of the claims notified to the MDU during the review period related to patients who had suffered brain damage or died during or shortly after an anaesthetic.
The cause of death in the claims reviewed was generally hypoxic brain injury; for example, following oesophageal intubation or cardiorespiratory arrest during the procedure.
Other causes including bleeding due to coagulopathy and drug-related complications including anaphylaxis.
In some cases, it was alleged that the pre-operative anaesthetic assessment was inadequate, resulting in complications during the operation, or that there was a lack of appropriate intra-operative monitoring.
Most of these cases arose following a general anaesthetic, but two were following an epidural and in two cases the patient became hypoxic during sedation. Claims arose following anaesthesia in adults and children, and for medical and dental procedures.
If a patient is left with a significant disability, they will have considerable care needs. This means not only that damages paid are substantial but also high costs are incurred by both the claimant and the defendant.
The costs mount up due to instructing medical experts and obtaining legal advice on what those care needs are and how they are best met, with the aim of returning the patient as far as possible to the position they would have been in but for the alleged negligence.
Claims following brain damage or death had a higher rate of settlement compared to other claims against anaesthetists, with over 50% of the claims being settled. Also, these injuries resulted in the highest sums being paid by the MDU in damages and claimant costs.
The range of damages payments was from just over £40,000 up to several million pounds and with payment of claimant costs ranging from £12,000 up to over £400,000.
Nerve damage and spinal cord injury
Almost 10% of claims analysed arose following nerve damage, ranging in severity from paraesthesia in the fingers to significant paralysis. The anaesthetic implicated was in most cases either an epidural – over 30% of claims – or a local nerve block, particularly a scalene block.
Local nerve damage was also alleged in some cases, allegedly causing issues such as foot drop and numbness and loss of arm function.
Although only 21% of these notified claims were settled by the MDU, again some of the highest damages payments arose from these claims in cases where the patient had suffered a spinal cord injury resulting in paralysis following an epidural or spinal anaesthetic.
This emphasises the importance of discussing this rare but potentially life-changing complication with patients pre-operatively, as well as ensuring that discussion includes any alternative methods of anaesthesia that could be used.
The concept of ‘awareness’ covers a whole range of experiences, from vague but painless recollections to the extremely rare cases where patients are paralysed but not anaesthetised.
Awareness only factored in a small number of notified claims in our analysis, and the majority of cases were successfully defended. Causes included instances of alleged failures with equipment such as machinery or tubing and inadequate levels of anaesthetic or sedation.
Of the claims that were settled, in the majority the damages paid ranged from £10,000 to £33,000, but in one case a six-figure compensation payment was made because the claimant developed post-traumatic stress disorder following a period of awareness during a laparoscopic procedure.
The risks to anaesthetised patients of sustaining pressure damage or nerve palsies as a result of positioning on the operating table are well-known.
Nearly 7% of claims reviewed were due to problems arising following positioning during or following a general anaesthetic or conscious sedation. Claims related to anaesthesia or sedation for both medical and dental procedures.
The skin of various areas of the body was affected in different cases, ranging from the face – for example, pressure areas on the chin during prone positioning – to damage to the heels.
Some injuries arising in these cases were relatively minor – such as a small burn from radiofrequency ablation – to more serious injuries, including alleged nerve damage due to compression. Thirty per cent of claims in this category were settled on behalf of the MDU anaesthetist, with damages up to £50,000.
There were 13 claims in relation to needles allegedly being misplaced. These ranged from alleged incorrect insertion of cannulas, causing phlebitis and areas of necrosis at the site of injections, to incorrect administration of cervical epidural injections.
Three of these claims were settled for sums ranging from around £5,000, where the patient suffered a pneumothorax, up to £500,000, where the patient unfortunately suffered paralysis.
The potential for instrumental damage is not confined to the teeth and to dental work – the soft tissue structures of the oropharynx, nasopharynx and trachea may also sustain injury, though rarely.
A handful of claims were reported following alleged airway damage, only one of which was settled for a modest sum.
Dr Claire Wratten (left) is claims team manager and Peter Renwick (right), lead claims handler at the Medical Defence Union (MDU)