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Clinical negligence
ETHICS
Clinical negligence
Learning objectives
Robert Palmer After reading this article, you should be able to: C understand the meaning of ‘duty of care’ and how a duty of care can fall to a particular individual C understand how a breach of a duty of care can arise, how it can lead to injury and know what to do if you believe such a breach has arisen C be aware of simple methods to minimize the chance of such a breach of a duty of care occurring
Mary C Maclachlan
Abstract Clinical negligence cases are based on the assumption that a doctor owes patients a duty to take reasonable care when treating or advising them. Doctors breach this duty if their treatment falls below the standard expected by a responsible body of medical opinion. The doctor will be held to have acted negligently. A patient may then have a claim for compensation if, and only if, the patient can prove, on the balance of probabilities, that the negligence has caused physical or emotional injury. A claim must be commenced within 3 years of when the injury occurred or it will be time barred.
an injury flowed from the breach whether it be from an act or an omission.
Duty of care
Keywords Breach of duty; causation; duty of care; medical negligence;
It was in 1932 when the idea of a duty of care was established. The famous case of Donoghue and Stevenson (1932 AC 562) involved a woman becoming ill after drinking a bottle of ginger beer. It was only after she had consumed the majority of the ginger beer that she discovered the remains of a decomposing snail in the bottle. The woman had not purchased the ginger beer but had been given it by a friend. It was therefore the friend who had a contract with the retailer/manufacturer and the woman was accordingly unable to claim for breach of contract. However, the law lords agreed that the manufacturer owed the consumer of the ginger beer, whoever that may be, a duty to take reasonable care for her safety and by not doing so he was negligent. This case highlights the importance of determining to whom the duty of care is owed. In a medical context, this was illustrated in three consolidated appeals to the House of Lords, which were submitted under the title of JD v East Berkshire Community NHS Trust and Others (FC)[2005] UKHL 23. The cases were unconnected but all involved investigations of suspected abuse of children, with the parents being the parties under suspicion. Following investigation, criminal cases against all the parents were dropped. The parents all sought to pursue claims for financial loss and psychiatric injury, but it was held by the House of Lords that the claims should fail, as the medical professionals involved had acted correctly in acting single-mindedly in the interests of the children, and that effectively they owed no duty of care to the parents. For doctors, the relevant area of negligence is professional negligence. When an individual holds himself out as having a particular skill, then he must display the same standard of care as other members of the profession in question, whether or not he in fact holds the same qualifications. Patients being treated either privately or within the NHS are deemed to be owed a duty to be taken reasonable care of by their health professionals. The tricky part can be deciding which health professional, if any, is liable. There may be a long line of health professionals (general practitioner, nurse, hospital doctor, surgeon, etc.) involved in the case. In an NHS hospital setting the medical personnel will be deemed to be working for the hospital trust or authority and therefore even if a number of personnel could be liable the trust or the authority will act as the single defendant. The health authority, as in other businesses, is seen as
negligence; statute of limitation Royal College of Anaesthetists CPD matrix: 1I00
Claims that arise from a medical injury come under three areas of law, namely Criminal, Tort (Delict in Scotlanda) and Contract. Criminal cases are those that arise from an assault or battery, assault being the apprehension of unwanted physical contact and battery the actual contact. Most commonly these criminal cases arise from operating or examining a patient without full consent or purposively injuring someone. Contract cases feature mainly in private practice. The promise of payment is given in return for advice or for carrying out treatment. In the NHS there is a rare exception where a contract may be deemed to arise. A doctor unwisely and unknowingly gives a warranty to a patient. To guarantee that there will be ‘no problems’ is foolhardy despite the temptation to calm a nervous patient. By far the majority of claims come under the law of Tort. Tort covers the situations where a wrong is done by one individual to another when there is no contract between them. A claimant must, however, show: they were owed a duty of care by a medical professional there was a breach in the duty of care
Robert Palmer is qualified in both Scottish and English Law, and specializes in financial services. He currently works with a leading insurance company in York, UK. Conflicts of interest: none declared. Mary C Maclachlan MB ChB studied medicine at the Victoria University of Manchester, UK. After qualification she continued to complete a Postgraduate Certificate in Law. She was subsequently a clinical negligence lawyer at Pannone & Partners. Conflicts of interest: none declared. a The law of Scotland, although differing in such areas as consent, limitation and remoteness of damage, is effectively the same as for England and Wales as far as professional negligence is concerned and is treated as such for the purposes of this article.
ANAESTHESIA AND INTENSIVE CARE MEDICINE 16:4
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Ó 2015 Published by Elsevier Ltd.
ETHICS
vicariously liable for the acts of its employees. The case of Wilsher v Essex Area Health Authority (1988 1 All ER 871) decided that it is a health authority’s duty to provide doctors who have sufficient skill. A general practitioner may also be a single defendant if no other medical professional is involved, and they will not be able to pass the responsibility onto the health authority or primary care trust. When a general practitioner is not a sole practitioner, all partners in the practice may be liable for the actions of one of their number. Of course, normally, a general practitioner will have medical indemnity with an insurer who will handle the claim for him or her. It is common for a claim to be brought against many defendants at the beginning, so as to establish which specific act of alleged negligence caused an injury can require close scrutiny of the events over, what may be, a long medical history. When there is more than one event, it can be difficult to establish whether an initial act was sufficiently significant to be deemed to be a cause. However, a subsequent act that has an immediately detrimental effect does not exonerate a previous negligent act, except where it is too remote to be a valid cause. Duty of care is therefore presumed and can be defended against only if the patient has decided not to accept advice or treatment. Even in these situations, it is essential that patients have been fully informed of the implications of their decision, that patients are competent to make those decisions for themselves, and are not likely to damage themselves as a result of their medical condition.
had to be supported by logical analysis and to be time specific. The case did go on to emphasize that it would be rare for a court to conclude that an expert opinion was not logical or defensible. By time specific, the courts were holding that the reasonable standard of care is expected by the professional at the relevant time. This means that, when the alleged negligence occurred some time ago, it cannot be judged by today’s thinking. It should be borne in mind that the required standard of care is the same when doctors are acting in a voluntary capacity as it is during their normal course of work. A doctor is not obliged by law to intervene to assist an individual who is not his patient, or who does not attend at a hospital where the doctor works, but if he does so, then the normal duty of care applies, as may be seen in the Australian case of Goode v Nash (1979 21 SASR 419) in which an unfortunate doctor carrying out charity work was obliged to pay damages for negligent treatment.
Injury and causation In many cases the vital issue is not whether there has been negligence but whether the reported negligence has resulted in any injury, whether physical or emotional (Table 1). Even if there has been gross negligence, unless there is some quantifiable injury there will be no claim. This can be difficult for a claimant to understand. A cry of ‘but I could have died’ will be met by ‘but you didn’t’. Even if there has been an injury and gross negligence there may still be no case unless there is a causal link between the negligent act and the resultant injury. It is not sufficient for the coincidence of a breach of duty and an injury occurring in itself to give rise to the presumption that the injury was caused by the negligence. The patient needs to prove that, on the balance of probabilities, the negligence caused the injury and not that it was one of several possibilities. When the patient is already suffering from an illness it may be difficult to determine to what degree negligence has altered the natural course of the illness. This can often be the most complicated area of a case, particularly in those claims arising from a delay in diagnosing or treating cancer. Here, it has been held by the House of Lords that, when an individual’s prospects of surviving cancer are already less than 50%, a negligent act that worsens these prospects does not generate an award of damages (Gregg v Scott 2005 AC 176). The test is: ‘but for’ the negligence the injury would not have occurred. This does not, however, cover the cases when the breach of duty consists of an omission. It is then back to looking at whether it was reasonable for the practitioner not to have acted and that if the practitioner had acted what would have been the foreseeable consequences. The required standard of care covers the provision of information, including the explanation of risk and the passing on of relevant facts, as well as the carrying out of procedures. Therefore, a medical professional’s failure to warn a patient of the risk of a particular form of treatment is not negligent if this is accepted practice, notwithstanding the fact that others in a similar position may consider it appropriate to warn of the risks. In circumstances where there is a failure to warn when it is accepted practice to do so, then the question may be asked as to what would have happened had the omission not occurred. If a patient who is not warned of the risks associated with treatment
Breach of duty Doctors or health professionals are deemed to have breached their duty of care if the standard of their treatment fell below the standard expected of them in law. This standard is set out in Bolam v Friern Hospital Management Committee:(1957 1 WLR 582): ‘the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is a well established law that it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art.’ Doctors do not need to be miracle workers; they do not even need to carry out the best treatment, but they need to have acted reasonably given all the circumstances. It will be for their fellow professionals to give their opinion as to whether this was the case. As set out in Bolam, doctors are not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of medical men or women skilled in that particular art. Independent medical evidence is required to establish whether the treatment is supported by a responsible body of medical opinion. It may be that there is a difference of opinion; there is often more than one way to treat a particular condition and the courts may consider both opinions to represent a responsible body. The most significant caveat to the above came in the case of Bolitho v City and Hackney Health Authority (1997 4 All ER 771). It was thought that Bolam allowed doctors to set their own standards. In Bolitho, it was stated that the reasonable standard
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Ó 2015 Published by Elsevier Ltd.
ETHICS
Common causes for anaesthetic negligence claims Anaesthetic awareness is the spontaneous recall of events by a patient during general anaesthesia. The most common sensations of inadequate anaesthesia include: C Pain which is most commonly associated with skin incision and insertion of sutures C Paralysis accompanied by feelings of great distress at being unable to signal wakefulness C Psychological disturbances Causes of anaesthetic awareness C Faulty technique 70% C Failure to check equipment 20% C Faulty equipment 2.5% C Justified risk-taking 2.5% Reducing the incidence of anaesthetic awareness C Obtaining a thorough preoperative history C Adequate premedication C All apparatus should be checked to exclude faults and malfunctions C The proper use of all new or unfamiliar equipment should be fully understood C All syringes should be labelled, to ensure the right drug is given at the right time C Vaporizers should contain sufficient chemicals and monitoring devices should be used to detect inadequate concentration C Opiate anaesthesia may need to be supplemented for certain resilient patients Table 1
Case studies Dental damage C A 60-year-old man with gallstones was booked in for a laparoscopic cholecystectomy at his local hospital. C At the preoperative visit, the anaesthetist noted the poor condition of his teeth and asked the patient about any dental work such as false teeth, veneers or crowns. The patient said he had a crown on his upper left canine fitted 7 years before, but it gave him no trouble and that his top front two teeth were false. As was his usual practice, the anaesthetist advised the patient that there was a risk of dental damage during the procedure and advised him to remove his denture before he was taken into theatre. C Although there was some initial difficulty passing the tracheal tube, no dental damage was apparent after the procedure, but, several weeks later, the patient visited his dentist for a check-up; the dentist advised the patient that the crown was loose. The patient contacted the hospital complaining that the anaesthetist must have damaged the crown while inserting the laryngoscope and took legal action to recover the cost of replacing it. Nerve damage C A patient with diabetes was in hospital for fixation of a fractured tibia. Induction was administered through a cannula in the anaesthetic room and the patient was then transferred into theatre, where she was positioned on the operating table and her arms placed by her sides and protected by padding. C During the procedure, the anaesthetist brushed against the patient’s right arm so that the pad was dislodged and the patient’s arm was left hanging over the edge of the table. This was noticed towards the end of the procedure by the anaesthetist and the padding repositioned. After emergence, the patient complained of a pins-and-needles sensation in her right hand and was referred to a neurologist for an assessment. C The neurologist concluded that the patient’s arm may have been compressed against the table during surgery, causing damage to the ulnar nerve, and recommended physiotherapy. C Several months later, sensation had not fully returned and the patient also complained of weakness in her right hand. The patient sued the hospital trust, claiming that the failure of the anaesthetist and theatre staff to adequately monitor her position during the procedure had resulted in peripheral nerve damage. Hypoxic brain damage C An elderly patient presented with signs of large bowel obstruction and was listed for urgent laparotomy. Airway examination was unremarkable and rapid sequence induction was planned. Unfortunately, following induction, cricoid pressure and administration of suxamethonium, laryngoscopy was impossible and blind attempts to intubate failed. Hypoxia developed rapidly, with saturations falling to below 75% and efforts to ventilate the lungs failed to improve oxygenation. Removal of cricoid pressure and use of a Guedel airway and a laryngeal mask failed to rectify the situation. The decision was taken to perform cricothyrotomy, which was successful in restoring oxygenation; however, by this time, saturations had been unrecordable for some minutes. A surgical tracheostomy was then performed, the surgical procedure abandoned and efforts made to wake up the patient. Despite artificial ventilation on intensive care without any further sedative agents, the patient never regained consciousness. C The patient’s widow subsequently commenced legal proceedings against the trust. Table 2
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ETHICS
then falls victim to one or more of them, he may receive damages despite not being able to prove that he would not have proceeded had he known of the risks at the outset. The failure to provide relevant factual information can also be negligent. In the case of Gerber v Pines (1934 79 SJ 13), in which part of a needle was left in a patient’s body, the negligence was not the procedural failure, but the failure subsequently to inform the patient of the problem. Examples of cases where legal proceedings were commenced can be found in Table 2.
states a claim must be brought no later than 3 years from the date when the incident occurred or when the claimant first realized they had suffered an injury. For children, the 3-year limitation period does not commence until they reach their majority (18 years of age). The court has the right to exercise its discretion if the limitation period has expired. In doing so, it has a duty to balance the prejudice to the claimant having the action dismissed out of time against the prejudice to a defendant in allowing an action to proceed.
Contributory negligence
No fault scheme
If the patient acts in such a way that further injury is caused as a result of his own unreasonable actions there will be a break in the chain of causation and therefore no claim.
The UK has considered the ‘no fault’ approach to running clinical negligence cases which New Zealand, Sweden and others have adopted. Although the system abolishes the need to prove fault it still holds all the difficulties of showing causation of injury owing to medical involvement rather than from the physiological progress of a medical condition. Despite support for a no fault system by the British Medical Association and the Royal College of Physicians, the Government, predominantly because of reasons of cost, has not supported the movement, although the Scottish Government set up an expert group in 2009 to look into the issue, and this group produced its report in February 2011. This recommended that consideration be given to the establishment of a no fault scheme for medical injury, along the lines of the Swedish model. However, no further progress appears to have been made since then. A
Damages It is impossible to place patients in a position they would have been but for the negligence in the case of an injury. The injury cannot be removed; however, any financial losses, whether these be present or future, arising from the injury can be compensated for. The patient’s claim is made up in two parts: general and special damages. General damages are compensation for the pain and suffering that the patient has experienced. The figures are based on case law and can be seen as fairly arbitrary. Special damages cover all financial losses and are specific, although the precise amounts needed for care, loss of pension, etc. are immensely arguable.
FURTHER READING Mason JK, McCall RA, Smith GT, et al. Law and medical ethics. 6th edn. Edinburgh: Lexis Nexis Butterworths Law, 2002.
Statute of limitation Even if there has been negligence that has led to an injury a claim may be lost because it is out of time. The Statute of Limitation
ANAESTHESIA AND INTENSIVE CARE MEDICINE 16:4
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Ó 2015 Published by Elsevier Ltd.
Clinical negligence
Learning objectives
Robert Palmer After reading this article, you should be able to: C understand the meaning of ‘duty of care’ and how a duty of care can fall to a particular individual C understand how a breach of a duty of care can arise, how it can lead to injury and know what to do if you believe such a breach has arisen C be aware of simple methods to minimize the chance of such a breach of a duty of care occurring
Mary C Maclachlan
Abstract Clinical negligence cases are based on the assumption that a doctor owes patients a duty to take reasonable care when treating or advising them. Doctors breach this duty if their treatment falls below the standard expected by a responsible body of medical opinion. The doctor will be held to have acted negligently. A patient may then have a claim for compensation if, and only if, the patient can prove, on the balance of probabilities, that the negligence has caused physical or emotional injury. A claim must be commenced within 3 years of when the injury occurred or it will be time barred.
an injury flowed from the breach whether it be from an act or an omission.
Duty of care
Keywords Breach of duty; causation; duty of care; medical negligence;
It was in 1932 when the idea of a duty of care was established. The famous case of Donoghue and Stevenson (1932 AC 562) involved a woman becoming ill after drinking a bottle of ginger beer. It was only after she had consumed the majority of the ginger beer that she discovered the remains of a decomposing snail in the bottle. The woman had not purchased the ginger beer but had been given it by a friend. It was therefore the friend who had a contract with the retailer/manufacturer and the woman was accordingly unable to claim for breach of contract. However, the law lords agreed that the manufacturer owed the consumer of the ginger beer, whoever that may be, a duty to take reasonable care for her safety and by not doing so he was negligent. This case highlights the importance of determining to whom the duty of care is owed. In a medical context, this was illustrated in three consolidated appeals to the House of Lords, which were submitted under the title of JD v East Berkshire Community NHS Trust and Others (FC)[2005] UKHL 23. The cases were unconnected but all involved investigations of suspected abuse of children, with the parents being the parties under suspicion. Following investigation, criminal cases against all the parents were dropped. The parents all sought to pursue claims for financial loss and psychiatric injury, but it was held by the House of Lords that the claims should fail, as the medical professionals involved had acted correctly in acting single-mindedly in the interests of the children, and that effectively they owed no duty of care to the parents. For doctors, the relevant area of negligence is professional negligence. When an individual holds himself out as having a particular skill, then he must display the same standard of care as other members of the profession in question, whether or not he in fact holds the same qualifications. Patients being treated either privately or within the NHS are deemed to be owed a duty to be taken reasonable care of by their health professionals. The tricky part can be deciding which health professional, if any, is liable. There may be a long line of health professionals (general practitioner, nurse, hospital doctor, surgeon, etc.) involved in the case. In an NHS hospital setting the medical personnel will be deemed to be working for the hospital trust or authority and therefore even if a number of personnel could be liable the trust or the authority will act as the single defendant. The health authority, as in other businesses, is seen as
negligence; statute of limitation Royal College of Anaesthetists CPD matrix: 1I00
Claims that arise from a medical injury come under three areas of law, namely Criminal, Tort (Delict in Scotlanda) and Contract. Criminal cases are those that arise from an assault or battery, assault being the apprehension of unwanted physical contact and battery the actual contact. Most commonly these criminal cases arise from operating or examining a patient without full consent or purposively injuring someone. Contract cases feature mainly in private practice. The promise of payment is given in return for advice or for carrying out treatment. In the NHS there is a rare exception where a contract may be deemed to arise. A doctor unwisely and unknowingly gives a warranty to a patient. To guarantee that there will be ‘no problems’ is foolhardy despite the temptation to calm a nervous patient. By far the majority of claims come under the law of Tort. Tort covers the situations where a wrong is done by one individual to another when there is no contract between them. A claimant must, however, show: they were owed a duty of care by a medical professional there was a breach in the duty of care
Robert Palmer is qualified in both Scottish and English Law, and specializes in financial services. He currently works with a leading insurance company in York, UK. Conflicts of interest: none declared. Mary C Maclachlan MB ChB studied medicine at the Victoria University of Manchester, UK. After qualification she continued to complete a Postgraduate Certificate in Law. She was subsequently a clinical negligence lawyer at Pannone & Partners. Conflicts of interest: none declared. a The law of Scotland, although differing in such areas as consent, limitation and remoteness of damage, is effectively the same as for England and Wales as far as professional negligence is concerned and is treated as such for the purposes of this article.
ANAESTHESIA AND INTENSIVE CARE MEDICINE 16:4
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Ó 2015 Published by Elsevier Ltd.
ETHICS
vicariously liable for the acts of its employees. The case of Wilsher v Essex Area Health Authority (1988 1 All ER 871) decided that it is a health authority’s duty to provide doctors who have sufficient skill. A general practitioner may also be a single defendant if no other medical professional is involved, and they will not be able to pass the responsibility onto the health authority or primary care trust. When a general practitioner is not a sole practitioner, all partners in the practice may be liable for the actions of one of their number. Of course, normally, a general practitioner will have medical indemnity with an insurer who will handle the claim for him or her. It is common for a claim to be brought against many defendants at the beginning, so as to establish which specific act of alleged negligence caused an injury can require close scrutiny of the events over, what may be, a long medical history. When there is more than one event, it can be difficult to establish whether an initial act was sufficiently significant to be deemed to be a cause. However, a subsequent act that has an immediately detrimental effect does not exonerate a previous negligent act, except where it is too remote to be a valid cause. Duty of care is therefore presumed and can be defended against only if the patient has decided not to accept advice or treatment. Even in these situations, it is essential that patients have been fully informed of the implications of their decision, that patients are competent to make those decisions for themselves, and are not likely to damage themselves as a result of their medical condition.
had to be supported by logical analysis and to be time specific. The case did go on to emphasize that it would be rare for a court to conclude that an expert opinion was not logical or defensible. By time specific, the courts were holding that the reasonable standard of care is expected by the professional at the relevant time. This means that, when the alleged negligence occurred some time ago, it cannot be judged by today’s thinking. It should be borne in mind that the required standard of care is the same when doctors are acting in a voluntary capacity as it is during their normal course of work. A doctor is not obliged by law to intervene to assist an individual who is not his patient, or who does not attend at a hospital where the doctor works, but if he does so, then the normal duty of care applies, as may be seen in the Australian case of Goode v Nash (1979 21 SASR 419) in which an unfortunate doctor carrying out charity work was obliged to pay damages for negligent treatment.
Injury and causation In many cases the vital issue is not whether there has been negligence but whether the reported negligence has resulted in any injury, whether physical or emotional (Table 1). Even if there has been gross negligence, unless there is some quantifiable injury there will be no claim. This can be difficult for a claimant to understand. A cry of ‘but I could have died’ will be met by ‘but you didn’t’. Even if there has been an injury and gross negligence there may still be no case unless there is a causal link between the negligent act and the resultant injury. It is not sufficient for the coincidence of a breach of duty and an injury occurring in itself to give rise to the presumption that the injury was caused by the negligence. The patient needs to prove that, on the balance of probabilities, the negligence caused the injury and not that it was one of several possibilities. When the patient is already suffering from an illness it may be difficult to determine to what degree negligence has altered the natural course of the illness. This can often be the most complicated area of a case, particularly in those claims arising from a delay in diagnosing or treating cancer. Here, it has been held by the House of Lords that, when an individual’s prospects of surviving cancer are already less than 50%, a negligent act that worsens these prospects does not generate an award of damages (Gregg v Scott 2005 AC 176). The test is: ‘but for’ the negligence the injury would not have occurred. This does not, however, cover the cases when the breach of duty consists of an omission. It is then back to looking at whether it was reasonable for the practitioner not to have acted and that if the practitioner had acted what would have been the foreseeable consequences. The required standard of care covers the provision of information, including the explanation of risk and the passing on of relevant facts, as well as the carrying out of procedures. Therefore, a medical professional’s failure to warn a patient of the risk of a particular form of treatment is not negligent if this is accepted practice, notwithstanding the fact that others in a similar position may consider it appropriate to warn of the risks. In circumstances where there is a failure to warn when it is accepted practice to do so, then the question may be asked as to what would have happened had the omission not occurred. If a patient who is not warned of the risks associated with treatment
Breach of duty Doctors or health professionals are deemed to have breached their duty of care if the standard of their treatment fell below the standard expected of them in law. This standard is set out in Bolam v Friern Hospital Management Committee:(1957 1 WLR 582): ‘the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is a well established law that it is sufficient if he exercises the ordinary skill of an ordinary man exercising that particular art.’ Doctors do not need to be miracle workers; they do not even need to carry out the best treatment, but they need to have acted reasonably given all the circumstances. It will be for their fellow professionals to give their opinion as to whether this was the case. As set out in Bolam, doctors are not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of medical men or women skilled in that particular art. Independent medical evidence is required to establish whether the treatment is supported by a responsible body of medical opinion. It may be that there is a difference of opinion; there is often more than one way to treat a particular condition and the courts may consider both opinions to represent a responsible body. The most significant caveat to the above came in the case of Bolitho v City and Hackney Health Authority (1997 4 All ER 771). It was thought that Bolam allowed doctors to set their own standards. In Bolitho, it was stated that the reasonable standard
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Ó 2015 Published by Elsevier Ltd.
ETHICS
Common causes for anaesthetic negligence claims Anaesthetic awareness is the spontaneous recall of events by a patient during general anaesthesia. The most common sensations of inadequate anaesthesia include: C Pain which is most commonly associated with skin incision and insertion of sutures C Paralysis accompanied by feelings of great distress at being unable to signal wakefulness C Psychological disturbances Causes of anaesthetic awareness C Faulty technique 70% C Failure to check equipment 20% C Faulty equipment 2.5% C Justified risk-taking 2.5% Reducing the incidence of anaesthetic awareness C Obtaining a thorough preoperative history C Adequate premedication C All apparatus should be checked to exclude faults and malfunctions C The proper use of all new or unfamiliar equipment should be fully understood C All syringes should be labelled, to ensure the right drug is given at the right time C Vaporizers should contain sufficient chemicals and monitoring devices should be used to detect inadequate concentration C Opiate anaesthesia may need to be supplemented for certain resilient patients Table 1
Case studies Dental damage C A 60-year-old man with gallstones was booked in for a laparoscopic cholecystectomy at his local hospital. C At the preoperative visit, the anaesthetist noted the poor condition of his teeth and asked the patient about any dental work such as false teeth, veneers or crowns. The patient said he had a crown on his upper left canine fitted 7 years before, but it gave him no trouble and that his top front two teeth were false. As was his usual practice, the anaesthetist advised the patient that there was a risk of dental damage during the procedure and advised him to remove his denture before he was taken into theatre. C Although there was some initial difficulty passing the tracheal tube, no dental damage was apparent after the procedure, but, several weeks later, the patient visited his dentist for a check-up; the dentist advised the patient that the crown was loose. The patient contacted the hospital complaining that the anaesthetist must have damaged the crown while inserting the laryngoscope and took legal action to recover the cost of replacing it. Nerve damage C A patient with diabetes was in hospital for fixation of a fractured tibia. Induction was administered through a cannula in the anaesthetic room and the patient was then transferred into theatre, where she was positioned on the operating table and her arms placed by her sides and protected by padding. C During the procedure, the anaesthetist brushed against the patient’s right arm so that the pad was dislodged and the patient’s arm was left hanging over the edge of the table. This was noticed towards the end of the procedure by the anaesthetist and the padding repositioned. After emergence, the patient complained of a pins-and-needles sensation in her right hand and was referred to a neurologist for an assessment. C The neurologist concluded that the patient’s arm may have been compressed against the table during surgery, causing damage to the ulnar nerve, and recommended physiotherapy. C Several months later, sensation had not fully returned and the patient also complained of weakness in her right hand. The patient sued the hospital trust, claiming that the failure of the anaesthetist and theatre staff to adequately monitor her position during the procedure had resulted in peripheral nerve damage. Hypoxic brain damage C An elderly patient presented with signs of large bowel obstruction and was listed for urgent laparotomy. Airway examination was unremarkable and rapid sequence induction was planned. Unfortunately, following induction, cricoid pressure and administration of suxamethonium, laryngoscopy was impossible and blind attempts to intubate failed. Hypoxia developed rapidly, with saturations falling to below 75% and efforts to ventilate the lungs failed to improve oxygenation. Removal of cricoid pressure and use of a Guedel airway and a laryngeal mask failed to rectify the situation. The decision was taken to perform cricothyrotomy, which was successful in restoring oxygenation; however, by this time, saturations had been unrecordable for some minutes. A surgical tracheostomy was then performed, the surgical procedure abandoned and efforts made to wake up the patient. Despite artificial ventilation on intensive care without any further sedative agents, the patient never regained consciousness. C The patient’s widow subsequently commenced legal proceedings against the trust. Table 2
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then falls victim to one or more of them, he may receive damages despite not being able to prove that he would not have proceeded had he known of the risks at the outset. The failure to provide relevant factual information can also be negligent. In the case of Gerber v Pines (1934 79 SJ 13), in which part of a needle was left in a patient’s body, the negligence was not the procedural failure, but the failure subsequently to inform the patient of the problem. Examples of cases where legal proceedings were commenced can be found in Table 2.
states a claim must be brought no later than 3 years from the date when the incident occurred or when the claimant first realized they had suffered an injury. For children, the 3-year limitation period does not commence until they reach their majority (18 years of age). The court has the right to exercise its discretion if the limitation period has expired. In doing so, it has a duty to balance the prejudice to the claimant having the action dismissed out of time against the prejudice to a defendant in allowing an action to proceed.
Contributory negligence
No fault scheme
If the patient acts in such a way that further injury is caused as a result of his own unreasonable actions there will be a break in the chain of causation and therefore no claim.
The UK has considered the ‘no fault’ approach to running clinical negligence cases which New Zealand, Sweden and others have adopted. Although the system abolishes the need to prove fault it still holds all the difficulties of showing causation of injury owing to medical involvement rather than from the physiological progress of a medical condition. Despite support for a no fault system by the British Medical Association and the Royal College of Physicians, the Government, predominantly because of reasons of cost, has not supported the movement, although the Scottish Government set up an expert group in 2009 to look into the issue, and this group produced its report in February 2011. This recommended that consideration be given to the establishment of a no fault scheme for medical injury, along the lines of the Swedish model. However, no further progress appears to have been made since then. A
Damages It is impossible to place patients in a position they would have been but for the negligence in the case of an injury. The injury cannot be removed; however, any financial losses, whether these be present or future, arising from the injury can be compensated for. The patient’s claim is made up in two parts: general and special damages. General damages are compensation for the pain and suffering that the patient has experienced. The figures are based on case law and can be seen as fairly arbitrary. Special damages cover all financial losses and are specific, although the precise amounts needed for care, loss of pension, etc. are immensely arguable.
FURTHER READING Mason JK, McCall RA, Smith GT, et al. Law and medical ethics. 6th edn. Edinburgh: Lexis Nexis Butterworths Law, 2002.
Statute of limitation Even if there has been negligence that has led to an injury a claim may be lost because it is out of time. The Statute of Limitation
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