- Email: [email protected]
What can we learn from the last 20 years: A review of litigation trends in otolaryngology
the surgeon xxx (xxxx) xxx
What can we learn from the last 20 years: A review of litigation trends in otolaryngology Alisha Patel a,*, Rebecca Harrison b, Babatunde Oremule c a
Health Education England North West, Otolaryngology Department, Tameside General Hospital, Fountain Street, Ashton-Under-Lyne, OL6 9RW, UK b Health Education England North West, Plastic Surgery Department, Wythenshawe Hospital, Southmoor Road, Manchester, M23 9LT, UK c Health Education England North West, Stepping Hill Hospital, Poplar Grove, Hazel Grove, SK2 7JE, UK
article info
abstract
Article history:
Introduction: Litigation in healthcare is a large financial burden to the NHS and can be a
Received 2 May 2019
cause of great stress to clinicians. The overall number of claims across specialities, from
Accepted 19 June 2019
the years 1995e2017 have increased. Despite being one of the smaller surgical specialities,
Available online xxx
litigation costs are still significant within Otolaryngology. In this piece we sought to analyse the available data to identify trends within litigation and therefore which areas of practise
Keywords:
could be improved.
Otolaryngology
Methods: A freedom of information request was submitted to NHS Resolution for sum-
Medico-legal
marised data on claims coded under ‘Otolaryngology’ or ‘ENT’ between 1996 and 2017.
Litigation
Information was collected on the total number of claims, the number of successful claims
NHS
and details on the reasons for making claims. Results: The total number of claims made against Otolaryngology departments from 1996/ 97 to 2016/17 was 1952. The overall number of claims have increased during this time period. The total amount of money paid out between 1996 and 2017 was £108, 240, 323. The top causes of claim by injury were unnecessary pain and unnecessary operations. The highest number of claims by cause were for failure or delay in diagnosis and intraoperative problems. Conclusion: These results highlight areas that local units can focus on to reduce their litigation burden. Targeted initiatives aimed at improving patient-clinician communication, the consent process and improving local organisational efficiency will address a significant proportion of claims. Re-examination of this data on a regular basis can serve as a useful adjunct in assessing the impact of quality improvement initiatives and implementation of best practiseswithin the speciality. © 2019 Royal College of Surgeons of Edinburgh (Scottish charity number SC005317) and Royal College of Surgeons in Ireland. Published by Elsevier Ltd. All rights reserved.
Introduction Litigation in healthcare is a large financial burden to the NHS and can be a cause of great stress to clinicians. Patients, or family members of deceased patients, are entitled to make claims where they feel the patient has suffered as a result of
negligent healthcare. In total across all specialities from 2017 to 2018, £227.5 million was paid out in clinical negligence payments, including damages paid to the claimant, claimant legal costs and defence costs.1 Overall, the number of claims across all specialities have steadily increased between 1995 and 2017, with the majority of claims being within the field of surgery (See Fig. 1).2
* Corresponding author. E-mail addresses: [email protected] (A. Patel), [email protected] (R. Harrison), [email protected] (B. Oremule). https://doi.org/10.1016/j.surge.2019.06.001 1479-666X/© 2019 Royal College of Surgeons of Edinburgh (Scottish charity number SC005317) and Royal College of Surgeons in Ireland. Published by Elsevier Ltd. All rights reserved. Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
2
the surgeon xxx (xxxx) xxx
Methods
Figure 1 e Chart showing total number of reported claims by speciality since the scheme began in April 1995, (excluding “below excess” claims handled by Trusts). Data from NHS Resolution Factsheet 3.2 When clinicians have litigation claims made against them, 95% experience periods of emotional distress.3 Data on negligence claims is useful for clinicians to highlight areas of practise that could potentially be improved to enhance patient care and to protect themselves against claims. In 1995 the NHS Litigation Authority was established to handle negligence claims for NHS Organisations in England, this became ‘NHS Resolution’ in April 2017.4 The majority of adverse events in hospitals occur where surgical teams are the main providers of care. The most common location for these events to occur is in the operating room (41%).5 Despite constant work towards safer working standards and the introduction of safety checklists, such as the World Health Organisation (WHO) surgical safety checklist, medical errors continue to occur.6 Not all medical errors lead to litigation however, often it is the communication of these errors to patients and their families that can have the greatest impact on whether a claim is pursued.7 Clinicians have a duty of candour to inform patients when a mistake has been made in their care. Laws regarding consenting patients for procedures have recently changed based on the “Montgomery v Lanarkshire” case in 2015. Previously it was up to the clinician to decide how much information to give a patient, provided that it would be considered a reasonable decision by a responsible body of medical opinion, termed the “Bolam test”.8 The UK Supreme Court ruled against using the “Bolam Test” after the “Montgomery v Lanarkshire” case, with UK case law being refined to place responsibility on the clinician as the care provider, to inform patients of all possible risks of a procedure and importantly, providing the patient with all possible alternatives. This opens up possible liabilities if patients believe they have not been informed of alternatives and therefore may perceive they have had unnecessary procedures performed on them. Despite being one of the smaller surgical specialities, litigation costs are still significant within Otolaryngology. There have been previous studies looking at clinical negligence claims within Otolaryngology, however no one has studied such an extensive time span with a comprehensive analysis of trends.9e11 In this piece we sought to analyse trends within NHS litigation in Otolaryngology over the past 20 years and identify areas where improvement in clinical practise could reduce litigation on the practising Otolaryngologist.
Ethical Considerations: The NHS Health Authority Research decision tool (see Appendix) was used to decide whether ethical approval was required. The decision tool deemed that no ethical approval was necessary for this paper. The authors have no known conflicts of interest to declare. A freedom of information request was placed to NHS Resolution for claims coded under ‘Otolaryngology’ or ‘ENT’ between 1996 and 2017. Data requested included the total number of claims and number of successful claims, with details of; the cause of the claim, whether it was an adult or paediatric case, and the sum of money paid out. The data provided by NHS Resolution was provided in a tabulated format. They were unable to provide data on claims less than five in number as this could potentially lead to identification of the claimants. They provided the total number of claims over the time period (20 years); the reasons for claims and the total costs broken down into sum of damages paid, sum of defence costs paid, and sum of claimant costs paid. The Medical Defence Union (MDU) were also contacted to provide data on litigation within the private health care sector, however they declined to provide this information. As they are not a public body a freedom of information request was not possible.
Results The total number of claims made against Otolaryngology departments in England from 1996/97 to 2016/17 was 1952. Overall, the total number of claims has increased during this time period from 18 per year to 153 per year (see Fig. 2). However there was a fall from 2003e2005. Claims have been highest most recently between 2013/14 and 2016/17. The number of paediatric claims has remained fairly stable, while the number of adult claims has steadily been increasing (see Fig. 3). The total amount of money paid out over the time period of the data set was £108, 240, 323. Whilst this has increased significantly from 1998/9 (NHS Resolution unable to provide data prior to this as there were less than five cases per year) in general there is a see-saw pattern. The highest total paid in a year was from 2015/2016 of £15 497 599.97 for 75 cases (see Figs. 4 and 5). The amount of money paid per case will depend on the nature of the case and the impact upon the claimant, details of which were unavailable due to confidentiality.
Figure 2 e Chart showing total number of claims versus successful claims all patients from 1996/97 to 2016/17.
Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
the surgeon xxx (xxxx) xxx
3
Figure 3 e Chart showing number of claims made in patients under 16 years old against claims made against patients over 16 years old. Data unavailable for 1997/98, 2000/01 and 2006/07 for paediatric patients and 1997/98 for adult patients due to confidentiality.
The highest number of claims by injury were from unnecessary pain and unnecessary operations. The greatest number of claims by cause were for failure or delay in diagnosis and intraoperative problems (Table 1).
Discussion The data provided by NHS Resolution builds a picture of the trends in litigation within Otolaryngology over the past 20 years. This review covers the longest time period and analyses annual trends, with the most extensive list of causes of litigation.9e11 This dataset highlights key areas of practise that can be improved to enhance patient safety and avoid future litigation. The number of claims made against the otolaryngology speciality has been increasing since 2004/05. However, the number of successful claims has remained fairly stable, with 57
Figure 4 e Chart showing the average amount of money paid out per case by NHS Resolution in litigation for Otolaryngology/ENT Departments by year.
successful claims made in 2004/05 with a modest rise to 74 successful claims in 2016/17. Over this period the proportion of successful claims has dropped, from 76% of claims being successful in 2004/05 to 37% of claims being successful in 2016/17. It is unclear exactly why the proportion of unsuccessful claims has increased. It may be as a result of concerted efforts by NHS bodies to prevent avoidable harm and pursuing an increase in out of court settlements for lower overall pay-outs.12 Unnecessary pain is responsible for the greatest number of claims by injury. This indicates that there is a mismatch in patient expectations versus reality or there is failure in adequate prescribing of analgesia by the teams involved. Whilst it is known that patients will experience pain post-operatively, it is important to inform patients of this to prepare them for their post-operative recovery. Simple interventions such as appropriate consent taking and adequate analgesia prescribing could
Figure 5 e Chart showing the total amount of money paid out per year by NHS Resolution in litigation for Otolaryngology/ENT.
Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
4
the surgeon xxx (xxxx) xxx
Table 1 e Showing number of successful claims by top 20 injuries and successful claims by top 20 causes from 1996/7 to 2016/17. Top 20 claims by Injury Grand Total Unnecessary Pain Additional/unnecessary Operation(s) Nerve Damage Deafness Fatality Partial Hearing Loss Cancer Cosmetic Disfigurement Scarring Perforation Burn(s) Psychiatric/Psychological Damage Advanced Stage Cancer Dental Damage Other Infection Brain Damage Other Visual Problems Poor Outcome - Fractures Etc. Malignant Tumour Vocal Cord Damage
Number of claims
Top 20 claims by Cause
Number of claims
864 165 131 92 77 64 34 32 30 27 26 25 24 23 21 20 18 18 14 12 11
Grand Total Failure/Delay Diagnosis Intra-Operative Problems Failure/Delay Treatment Failure To Warn-Informed Consent Inappropriate Treatment Fail To Recognise Complications Fail To Follow-Up Arrangements Operator Error Error With Agent/Dose/Route/Selection Foreign Body Left In Situ Medication Errors Retained Instrument Post-Operation Diathermy Burns/Reaction To Prep Performance Of Operation Not Indicated Delay In Performing Operation Wrong Site Surgery Failure To Perform Tests Inadequate Monitoring Intra-Op Tooth Injection & Patient Posit Problem Fail To Act On Abnormal Test Results
861 199 164 106 73 61 58 22 20 16 16 15 15 14 14 13 13 11 11 11 9
have a significant effect on the overall number of claims against the speciality. Injuries such as nerve damage and deafness are recognised as complications of certain procedures, therefore claims for these areas may again point to errors in the consent process as suggested by Cartwright et al.9 The highest number of claims by cause was due to failure or a delay in diagnosis, making up 23% of claims. The third highest number of claims by cause was failure or delay in treatment. Together these make up over a third of claims by cause in the top twenty. Nationally, across specialities, the second most common cause for claim is failure or delay in cancer diagnoses.13 This suggests effort should be focused on improving and streamlining systems to reduce delays and reduce the burden of litigation. In 2014 NHS Improving Quality published ‘Seven Ways to No Delays’e a document guiding clinicians and managers on how to improve processes in their department to be more efficient and improve the patient journey.14 It is not known how widely used this has been by trusts but it could be a useful tool going forward for those departments that have a recognised high rate of delay in diagnosis. Two of the top 20 causes for claims are classified as never events: retained instrument post-surgery and wrong site surgery. Unfortunately this information is not available per year so it is not known whether the implementation of the WHO surgical safety checklist throughout NHS hospitals in 2009 has reduced the number of never events. However, failure of proper implementation of surgical checklists leaves patients vulnerable to harm. Paying greater attention to processes designed to improve patient safety, and serious investigations when such incidents occur, inevitably reduces the chance of litigation.
not been coded by clinical staff, and therefore the accuracy cannot be verified. The top twenty injuries and causes of claims have not been given by year, therefore trends for this information cannot be determined. Access to individual case data, as was previously available in the research performed by Savage and Weiner and Cartwright et al., is no longer available due to changes in law (Freedom of Information Act, Section 40).15
Conclusions There has been an overall rise in the number of litigation claims to the National Health Service over the last 20 years. The number of successful claims against otolaryngology has doubled since 2010 and whilst the trend seems to have plateaued, the number of claims still represents a significant financial and emotional burden to doctors and patients. The data provided by the NHS resolution is valuable for the speciality of Otolaryngology as a whole, and also local units, who can use the data to focus on areas of improvement to reduce their litigation burden. Targeted initiatives aimed at improving patient-clinician communication, the consent process and improving local organisational efficiency will address a significant proportion of claims. Reexamination of this data on a regular basis can serve as a useful adjunct in assessing the impact of quality improvement initiatives and implementation of best practises within the speciality.
Limitations
Acknowledgements
Whilst the data provided by NHS Resolution is important for clinicians to view, it is important to note that the claims have
To NHS Resolution for providing data via a freedom of information request.
Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
the surgeon xxx (xxxx) xxx
Appendix Decision regarding ethical approval was made using the ‘NHS Health Research Authority Decision Tool’, available at: http:// www.hra-decisiontools.
5
references
1. www.resolution.nhs.uk. Annual report and accounts 2017/18. July 2018. Available at, https://resolution.nhs.uk/wp-content/ uploads/2018/08/NHS-Resolution-Annual-Report-2017-2018. pdf. [Accessed 15 August 2018]. 2. www.resolution.nhs.uk. Factsheet 3- claims information 2017/ 18. Sept, 2018. Available at, https://resolution.nhs.uk/ resources/factsheet-3-claims-information-2017-18/. [Accessed 16 August 2018]. 3. Charles Sara C. Coping with a medical malpractice suit. West J Med V 2001;174(1):55e8. 4. www.resolution.nhs.uk. Factsheet 1: basic information. Sept, 2018. Available at, https://resolution.nhs.uk/resources/ factsheet-1-basic-information/. 5. de Vries EN, Ramrattan MA, Smorenburg SM, Gouma DJ, Boermeester MA. The incidence and nature of in-hospital adverse events: a systematic review. Qual Saf Health Care V 2008;17(3):216e23. 6. www.who.int. WHO surgical safety checklist. 2009. Available at: http://www.who.int/patientsafety/safesurgery/checklist/en/. [Accessed 18 July 2018]. 7. Beckman HB, Markakis KM, Suchman AL, Frankel RM. The doctor-patient relationship and malpractice: lessons from plaintiff depositions. Arch Inter Med 1994;154(12):1365e70. 8. www.supremecourt.uk. Judgement montgomery (appellant) v Lanarkshire health board (respondent) (Scotland). March 2015. Available at, https://www.supremecourt.uk/decided-cases/ docs/UKSC_2013_0136_Judgment.pdf. [Accessed 2 October 2018]. 9. Cartwright S, Baer S, Atrey A. Appraisal of litigation against English Health Trusts in the treatment of adults with ear, nose & throat pathology: how we do it. Clin Otolaryngol 2010;V35:496e506. 10. Metcalfe CW, Muzaffar SJ, Couldson CJ. Litigation trends and costs in otorhinolaryngology. J Laryngol Otol 2015;V129:941e4. 11. Savage JR, Weiner GM. Litigation in otolaryngology e trends and recommendations. J Laryngol Otol 2006;V120:1001e4. 12. www.resolution.nhs.uk. Delivering fair resolution and learning from harm, our strategy to 2022. April 2017. Available at, https:// resolution.nhs.uk/wp-content/uploads/2017/04/NHSResolution-Our-strategy-to-2022-1.pdf. [Accessed 31 October 2018]. 13. www.graysons.co.uk. What are really the top misdiagnosed conditions in NHS hospitals in 2014/15?. 2014. Available at, https://www.graysons.co.uk/advice/the-top-misdiagnosedconditions-in-nhs-hospitals/. [Accessed 20 September 2018]. 14. www.england.nhs.uk/improvement-hub. Seven ways to no delays. 2014. Available at https://www.england.nhs.uk/ improvement-hub/wp-content/uploads/sites/44/2017/11/ Seven-Ways-to-No-Delay.pdf. [Accessed 20 September 2018]. 15. https://ico.org.uk. Personal.Information (section 40 and regulation 13). Available at https://ico.org.uk/media/ 1213/personal-information-section-40-and-regulation-13foia-and-eir-guidance.pdf. [Accessed 1 January 2018].
Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
What can we learn from the last 20 years: A review of litigation trends in otolaryngology Alisha Patel a,*, Rebecca Harrison b, Babatunde Oremule c a
Health Education England North West, Otolaryngology Department, Tameside General Hospital, Fountain Street, Ashton-Under-Lyne, OL6 9RW, UK b Health Education England North West, Plastic Surgery Department, Wythenshawe Hospital, Southmoor Road, Manchester, M23 9LT, UK c Health Education England North West, Stepping Hill Hospital, Poplar Grove, Hazel Grove, SK2 7JE, UK
article info
abstract
Article history:
Introduction: Litigation in healthcare is a large financial burden to the NHS and can be a
Received 2 May 2019
cause of great stress to clinicians. The overall number of claims across specialities, from
Accepted 19 June 2019
the years 1995e2017 have increased. Despite being one of the smaller surgical specialities,
Available online xxx
litigation costs are still significant within Otolaryngology. In this piece we sought to analyse the available data to identify trends within litigation and therefore which areas of practise
Keywords:
could be improved.
Otolaryngology
Methods: A freedom of information request was submitted to NHS Resolution for sum-
Medico-legal
marised data on claims coded under ‘Otolaryngology’ or ‘ENT’ between 1996 and 2017.
Litigation
Information was collected on the total number of claims, the number of successful claims
NHS
and details on the reasons for making claims. Results: The total number of claims made against Otolaryngology departments from 1996/ 97 to 2016/17 was 1952. The overall number of claims have increased during this time period. The total amount of money paid out between 1996 and 2017 was £108, 240, 323. The top causes of claim by injury were unnecessary pain and unnecessary operations. The highest number of claims by cause were for failure or delay in diagnosis and intraoperative problems. Conclusion: These results highlight areas that local units can focus on to reduce their litigation burden. Targeted initiatives aimed at improving patient-clinician communication, the consent process and improving local organisational efficiency will address a significant proportion of claims. Re-examination of this data on a regular basis can serve as a useful adjunct in assessing the impact of quality improvement initiatives and implementation of best practiseswithin the speciality. © 2019 Royal College of Surgeons of Edinburgh (Scottish charity number SC005317) and Royal College of Surgeons in Ireland. Published by Elsevier Ltd. All rights reserved.
Introduction Litigation in healthcare is a large financial burden to the NHS and can be a cause of great stress to clinicians. Patients, or family members of deceased patients, are entitled to make claims where they feel the patient has suffered as a result of
negligent healthcare. In total across all specialities from 2017 to 2018, £227.5 million was paid out in clinical negligence payments, including damages paid to the claimant, claimant legal costs and defence costs.1 Overall, the number of claims across all specialities have steadily increased between 1995 and 2017, with the majority of claims being within the field of surgery (See Fig. 1).2
* Corresponding author. E-mail addresses: [email protected] (A. Patel), [email protected] (R. Harrison), [email protected] (B. Oremule). https://doi.org/10.1016/j.surge.2019.06.001 1479-666X/© 2019 Royal College of Surgeons of Edinburgh (Scottish charity number SC005317) and Royal College of Surgeons in Ireland. Published by Elsevier Ltd. All rights reserved. Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
2
the surgeon xxx (xxxx) xxx
Methods
Figure 1 e Chart showing total number of reported claims by speciality since the scheme began in April 1995, (excluding “below excess” claims handled by Trusts). Data from NHS Resolution Factsheet 3.2 When clinicians have litigation claims made against them, 95% experience periods of emotional distress.3 Data on negligence claims is useful for clinicians to highlight areas of practise that could potentially be improved to enhance patient care and to protect themselves against claims. In 1995 the NHS Litigation Authority was established to handle negligence claims for NHS Organisations in England, this became ‘NHS Resolution’ in April 2017.4 The majority of adverse events in hospitals occur where surgical teams are the main providers of care. The most common location for these events to occur is in the operating room (41%).5 Despite constant work towards safer working standards and the introduction of safety checklists, such as the World Health Organisation (WHO) surgical safety checklist, medical errors continue to occur.6 Not all medical errors lead to litigation however, often it is the communication of these errors to patients and their families that can have the greatest impact on whether a claim is pursued.7 Clinicians have a duty of candour to inform patients when a mistake has been made in their care. Laws regarding consenting patients for procedures have recently changed based on the “Montgomery v Lanarkshire” case in 2015. Previously it was up to the clinician to decide how much information to give a patient, provided that it would be considered a reasonable decision by a responsible body of medical opinion, termed the “Bolam test”.8 The UK Supreme Court ruled against using the “Bolam Test” after the “Montgomery v Lanarkshire” case, with UK case law being refined to place responsibility on the clinician as the care provider, to inform patients of all possible risks of a procedure and importantly, providing the patient with all possible alternatives. This opens up possible liabilities if patients believe they have not been informed of alternatives and therefore may perceive they have had unnecessary procedures performed on them. Despite being one of the smaller surgical specialities, litigation costs are still significant within Otolaryngology. There have been previous studies looking at clinical negligence claims within Otolaryngology, however no one has studied such an extensive time span with a comprehensive analysis of trends.9e11 In this piece we sought to analyse trends within NHS litigation in Otolaryngology over the past 20 years and identify areas where improvement in clinical practise could reduce litigation on the practising Otolaryngologist.
Ethical Considerations: The NHS Health Authority Research decision tool (see Appendix) was used to decide whether ethical approval was required. The decision tool deemed that no ethical approval was necessary for this paper. The authors have no known conflicts of interest to declare. A freedom of information request was placed to NHS Resolution for claims coded under ‘Otolaryngology’ or ‘ENT’ between 1996 and 2017. Data requested included the total number of claims and number of successful claims, with details of; the cause of the claim, whether it was an adult or paediatric case, and the sum of money paid out. The data provided by NHS Resolution was provided in a tabulated format. They were unable to provide data on claims less than five in number as this could potentially lead to identification of the claimants. They provided the total number of claims over the time period (20 years); the reasons for claims and the total costs broken down into sum of damages paid, sum of defence costs paid, and sum of claimant costs paid. The Medical Defence Union (MDU) were also contacted to provide data on litigation within the private health care sector, however they declined to provide this information. As they are not a public body a freedom of information request was not possible.
Results The total number of claims made against Otolaryngology departments in England from 1996/97 to 2016/17 was 1952. Overall, the total number of claims has increased during this time period from 18 per year to 153 per year (see Fig. 2). However there was a fall from 2003e2005. Claims have been highest most recently between 2013/14 and 2016/17. The number of paediatric claims has remained fairly stable, while the number of adult claims has steadily been increasing (see Fig. 3). The total amount of money paid out over the time period of the data set was £108, 240, 323. Whilst this has increased significantly from 1998/9 (NHS Resolution unable to provide data prior to this as there were less than five cases per year) in general there is a see-saw pattern. The highest total paid in a year was from 2015/2016 of £15 497 599.97 for 75 cases (see Figs. 4 and 5). The amount of money paid per case will depend on the nature of the case and the impact upon the claimant, details of which were unavailable due to confidentiality.
Figure 2 e Chart showing total number of claims versus successful claims all patients from 1996/97 to 2016/17.
Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
the surgeon xxx (xxxx) xxx
3
Figure 3 e Chart showing number of claims made in patients under 16 years old against claims made against patients over 16 years old. Data unavailable for 1997/98, 2000/01 and 2006/07 for paediatric patients and 1997/98 for adult patients due to confidentiality.
The highest number of claims by injury were from unnecessary pain and unnecessary operations. The greatest number of claims by cause were for failure or delay in diagnosis and intraoperative problems (Table 1).
Discussion The data provided by NHS Resolution builds a picture of the trends in litigation within Otolaryngology over the past 20 years. This review covers the longest time period and analyses annual trends, with the most extensive list of causes of litigation.9e11 This dataset highlights key areas of practise that can be improved to enhance patient safety and avoid future litigation. The number of claims made against the otolaryngology speciality has been increasing since 2004/05. However, the number of successful claims has remained fairly stable, with 57
Figure 4 e Chart showing the average amount of money paid out per case by NHS Resolution in litigation for Otolaryngology/ENT Departments by year.
successful claims made in 2004/05 with a modest rise to 74 successful claims in 2016/17. Over this period the proportion of successful claims has dropped, from 76% of claims being successful in 2004/05 to 37% of claims being successful in 2016/17. It is unclear exactly why the proportion of unsuccessful claims has increased. It may be as a result of concerted efforts by NHS bodies to prevent avoidable harm and pursuing an increase in out of court settlements for lower overall pay-outs.12 Unnecessary pain is responsible for the greatest number of claims by injury. This indicates that there is a mismatch in patient expectations versus reality or there is failure in adequate prescribing of analgesia by the teams involved. Whilst it is known that patients will experience pain post-operatively, it is important to inform patients of this to prepare them for their post-operative recovery. Simple interventions such as appropriate consent taking and adequate analgesia prescribing could
Figure 5 e Chart showing the total amount of money paid out per year by NHS Resolution in litigation for Otolaryngology/ENT.
Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
4
the surgeon xxx (xxxx) xxx
Table 1 e Showing number of successful claims by top 20 injuries and successful claims by top 20 causes from 1996/7 to 2016/17. Top 20 claims by Injury Grand Total Unnecessary Pain Additional/unnecessary Operation(s) Nerve Damage Deafness Fatality Partial Hearing Loss Cancer Cosmetic Disfigurement Scarring Perforation Burn(s) Psychiatric/Psychological Damage Advanced Stage Cancer Dental Damage Other Infection Brain Damage Other Visual Problems Poor Outcome - Fractures Etc. Malignant Tumour Vocal Cord Damage
Number of claims
Top 20 claims by Cause
Number of claims
864 165 131 92 77 64 34 32 30 27 26 25 24 23 21 20 18 18 14 12 11
Grand Total Failure/Delay Diagnosis Intra-Operative Problems Failure/Delay Treatment Failure To Warn-Informed Consent Inappropriate Treatment Fail To Recognise Complications Fail To Follow-Up Arrangements Operator Error Error With Agent/Dose/Route/Selection Foreign Body Left In Situ Medication Errors Retained Instrument Post-Operation Diathermy Burns/Reaction To Prep Performance Of Operation Not Indicated Delay In Performing Operation Wrong Site Surgery Failure To Perform Tests Inadequate Monitoring Intra-Op Tooth Injection & Patient Posit Problem Fail To Act On Abnormal Test Results
861 199 164 106 73 61 58 22 20 16 16 15 15 14 14 13 13 11 11 11 9
have a significant effect on the overall number of claims against the speciality. Injuries such as nerve damage and deafness are recognised as complications of certain procedures, therefore claims for these areas may again point to errors in the consent process as suggested by Cartwright et al.9 The highest number of claims by cause was due to failure or a delay in diagnosis, making up 23% of claims. The third highest number of claims by cause was failure or delay in treatment. Together these make up over a third of claims by cause in the top twenty. Nationally, across specialities, the second most common cause for claim is failure or delay in cancer diagnoses.13 This suggests effort should be focused on improving and streamlining systems to reduce delays and reduce the burden of litigation. In 2014 NHS Improving Quality published ‘Seven Ways to No Delays’e a document guiding clinicians and managers on how to improve processes in their department to be more efficient and improve the patient journey.14 It is not known how widely used this has been by trusts but it could be a useful tool going forward for those departments that have a recognised high rate of delay in diagnosis. Two of the top 20 causes for claims are classified as never events: retained instrument post-surgery and wrong site surgery. Unfortunately this information is not available per year so it is not known whether the implementation of the WHO surgical safety checklist throughout NHS hospitals in 2009 has reduced the number of never events. However, failure of proper implementation of surgical checklists leaves patients vulnerable to harm. Paying greater attention to processes designed to improve patient safety, and serious investigations when such incidents occur, inevitably reduces the chance of litigation.
not been coded by clinical staff, and therefore the accuracy cannot be verified. The top twenty injuries and causes of claims have not been given by year, therefore trends for this information cannot be determined. Access to individual case data, as was previously available in the research performed by Savage and Weiner and Cartwright et al., is no longer available due to changes in law (Freedom of Information Act, Section 40).15
Conclusions There has been an overall rise in the number of litigation claims to the National Health Service over the last 20 years. The number of successful claims against otolaryngology has doubled since 2010 and whilst the trend seems to have plateaued, the number of claims still represents a significant financial and emotional burden to doctors and patients. The data provided by the NHS resolution is valuable for the speciality of Otolaryngology as a whole, and also local units, who can use the data to focus on areas of improvement to reduce their litigation burden. Targeted initiatives aimed at improving patient-clinician communication, the consent process and improving local organisational efficiency will address a significant proportion of claims. Reexamination of this data on a regular basis can serve as a useful adjunct in assessing the impact of quality improvement initiatives and implementation of best practises within the speciality.
Limitations
Acknowledgements
Whilst the data provided by NHS Resolution is important for clinicians to view, it is important to note that the claims have
To NHS Resolution for providing data via a freedom of information request.
Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001
the surgeon xxx (xxxx) xxx
Appendix Decision regarding ethical approval was made using the ‘NHS Health Research Authority Decision Tool’, available at: http:// www.hra-decisiontools.
5
references
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Please cite this article as: Patel A et al., What can we learn from the last 20 years: A review of litigation trends in otolaryngology, The Surgeon, https://doi.org/10.1016/j.surge.2019.06.001