Medical negligence claims in anaesthetics are relatively uncommon, but if and when it arises, a claim can be very distressing. As a 'doctors for doctors' organisation, the MDU's expert claims handlers and medico-legal advisers understand how stressful facing a claim can be and the importance of mounting a robust defence of your position.

This article examines the causes of claims against anaesthetists and offer advice for managing the risks in this specialty. It is based on an analysis of 170 clinical negligence claims made against MDU anaesthetists working in private practice over a recent period.

Common causes of claims included dental damage which accounted for a third of all notifications, drug errors or adverse reactions, needle misplacement and anaesthetic awareness (fig. 1).

Beyond claims, over the same period the MDU assisted well over 3,000 anaesthetist members with other medico-legal problems, including GMC investigations, inquests, disciplinary procedures, performance concerns and even criminal investigations. This article, however, focuses on clinical negligence litigation which, while relatively uncommon, can have huge financial implications.

Claims outcomes

In 73% of cases reviewed, the claim was successfully defended without any payment of damages or claimant legal costs. Of the 27% of cases settled, compensation payments ranged from under £1,000 to over £2.6 million. The average cost of each settled claim was well over £100,000.

Compensation payments aim to return the patient to the position they would have been in had the negligence not occurred. 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 damages may be paid.

In the three highest settlements, which each resulted in compensation payments of over £1.5m, the patient had a neurological injury or spinal cord damage leading to significant disabilities. On the other end of the spectrum, lower payments were often due to dental damage caused during a procedure.

While the number of claims brought against anaesthetists 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. Find out more at themdu.com/faircomp

Dental damages

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. Damage commonly occurs due to a laryngoscope, but other devices also damage teeth and lead to claims, such as an endotracheal tube or laryngeal mask airway.

The 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 and we aim to defend the clinical actions of our members where it's possible to do so.

These claims tend to settle for a modest amount, which on average in the cases analysed was around £5,000. However, some claims totalled over £20,000 because of the need for extensive dental restoration work or dental implants.

When an assessment has been made of the upper airway, dentition and other factors before anaesthesia, this should be clearly documented along with a record of any warning given to the patient. The records can be key to the successful defence of a claim which might be brought months or even years after the treatment.

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. Of the claims that were settled relating to drug usage, the average level of compensation and legal costs paid was around £50,000.

Many claims involved the prescription of a drug to a patient with a known allergy. The highest amount paid was well over £350,000, in compensation and legal costs following the administration of amoxicillin to a patient with a penicillin allergy during a hysterectomy. This resulted in a severe allergic reaction and the patient ultimately having to take early retirement.

While incidents like these are uncommon, it's worth noting the fact that claims continue to arise from such errors, as the majority of them could have been avoided if standard checks had been undertaken.

Needle misplacement

Claims due to needle misplacement involved patients suffering compartment syndrome after 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, the average amount paid was over £400,000 in damages and legal costs, with the largest such claims resulting in compensation well in excess of £1m being paid.

In one such case the procedure resulted in the patient suffering significant disability. The consent form signed by the patient made no reference to the risk of paralysis, which was a known but rare risk of 1 in 20,000 cases. It was alleged the patient should have been informed of the possibility as the consequences of such an injury are so severe. Following agreement between the independent experts engaged on the case, the claim had to be settled.

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Anaesthetic awareness

The concept of 'awareness' covers a whole range of experience, from bad dreams and 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. Where cases settled, the damages resulting were relatively low (generally under £30,000).

Awareness claims arise from anaesthesia regardless of the technique used; whether balanced anaesthesia with relaxant and inhalation agent or total intravenous anaesthesia. Some claims arise from cases where sedation has been used, due to a misunderstanding or unrealistic expectation of the technique. Where the notes record clearly the information given to the patient in advance of the procedure, such concerns are more easily resolved.

Brain damage or death

Brain damage or death is thankfully a very rare outcome in the claims we analysed. However, it is worth noting that very 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.

Where claims have to be settled, the damages and costs paid can be very significant. The highest amount paid by the MDU to date to settle an anaesthetic claim was over £6m, and in the cases analysed one case settled for over £2.6m in compensation and legal costs.

Damage to airways and other internal organs

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, although this is rare. There were a small number of claims in relation to damage to patients' airways from the equipment such as a laryngoscope or a laryngeal mask airway. These cases rarely resulted in settlement and where they did the amount paid was very modest.

Even with the highest standard of care, patients commonly experience a sore mouth or throat during the immediate post-operative period, and a recorded warning may assist if a claim is brought at a later date.

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 if this had been brought to his attention.

In 73% of cases reviewed, the claim was successfully defended without any payment of damages or claimant legal costs. Of the 27% of cases settled, compensation payments ranged from under £1,000 to over £2.6 million.

Positioning

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 a number of notifications of cases in this category in the claims analysed, only one such claim has, to date, settled. This followed a patient being injured when falling off the operating table and was settled for a modest sum.

Consent

Allegations that the consent procedure was inadequate feature in many of the claims being made against anaesthetists, but in a few cases this was the prime focus of the case. Commonly, allegations were that the risks of a procedure were not adequately explained to the patient. However, none of the claims which centred solely on this issue were settled. Well documented discussions with the patient can help in the defence of any claim.

The most striking recent change in the legal standard for consent is the requirement for doctors to provide the information that the particular patient would wish to know, known as the Montgomery judgement.

A small number of miscellaneous cases followed issues such as complications following catheterisation, peripheral nerve damage and failure to monitor blood sugar levels in a known diabetic.

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.

  • Ensure the patient has given fully informed consent before being anesthetised. For example, patients should understand why a treatment is necessary, the risks involved, and any alternatives. This discussion should be documented in the notes.
  • Record any warnings given pre¬≠operatively, such as of a sore throat post-operatively or of some awareness during sedation.
  • If there are additional risk factors for a particular patient, such as the risk of dental damage, you should discuss them and document them in the records. This will show that you were aware of the increased risk at the time you undertook the procedure and that you communicated this to the patient.
  • It is important that patients are not given the impression that the cost of repairing dental damage will automatically be met.
  • Develop a regular routine for pre-and post- operative assessments and stick to it. Make a note of your assessments in the records.
  • Check the past medical history, known allergies and concurrent medication before prescribing any drug.
  • Document that you have checked pressure points and ensure those assisting you are aware of the risks to pressure points.
  • Make sure procedures are in place to eliminate the risk of 'wrong side' errors, such as checking the patient's clinical record and consent form and confirming details with the patient.
  • Consider your professional duty of candour. If something goes wrong, apologise and notify the patient and any necessary parties as soon as possible.

This page was correct at publication on 07/10/2020. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

Dr Claire Wratten

Dr Claire Wratten is a senior medical claims handler and claims team manager, who joined the MDU in 2006 from a background in nephrology and general medicine. See more by Dr Claire Wratten