Negligence Claims Research Articles

The lived experiences of UK physiotherapists involved in Cauda Equina Syndrome litigation. A qualitative study.

Cauda Equina Syndrome is a serious spinal pathology, which can have life changing physical and psychological consequences and is highly litigious. Litigation can have negative personal and professional effects on the healthcare professionals cited in a clinical negligence claim. There is an absence of research looking at the experience of the physiotherapist and as such, it is unknown the impact litigation is having on them. This study explored the lived experiences of UK physiotherapists in relation to Cauda Equina Syndrome litigation. A qualitative design, informed by Gadamerian hermeneutic phenomenology, using semi-structured interviews was used to explore participants' lived experiences of litigation. Interviews were audio-recorded and transcribed verbatim. Findings were analysed using an inductive thematic analysis framework. Nvivo software was used to facilitate analysis. The study is reported in accordance with the consolidated criteria for reporting qualitative (COREQ) research. 40 interviews took place online or over the phone, with physiotherapists and stakeholders. Four themes were found; 'litigation effects', 'it feels personal', 'learning from litigation' and 'support and training'. This is the first study to investigate the lived experiences of litigation in UK physiotherapists. Involvement in clinical negligence affected physiotherapists' physical and mental wellbeing and impacted their clinical practice. Most physiotherapists felt litigation was a personal attack on them and their ability to do their job. Physiotherapists highlighted perceptions of a 'blame culture' and perceived stigma associated with the claim, which often led to a lack of sharing and learning from litigation. Physiotherapists emphasised the need for emotional support for those going through a legal claim and that training was needed to understand the process of litigation and range of potential outcomes.

Contrast Agent Administration as a Source of Liability: A Legal Database Analysis.

Background Radiology ranks high in terms of specialties implicated in medical malpractice claims. While most radiologists understand the risks of liability for missed findings or lapses of communication, liability for the use of contrast agents in imaging procedures may be underappreciated. Purpose To review the clinical context and outcomes of lawsuits alleging medical malpractice for contrast-related imaging procedures. Materials and Methods Two large U.S. legal databases were queried using the terms "Contrast" and "Radiology OR Radiologist" from database inception to October 31, 2022, to identify cases with published decisions or settlements related to medical malpractice in patients who underwent contrast-related imaging procedures. The search results were screened to include only those cases involving the practice area of health care law where there was at least one claim of medical negligence against a health care institution or provider. Data on the medical complications alleged by patients after contrast agent administration and on the trial were extracted and reported using descriptive statistics. Results A total of 151 published case summaries were included in the analysis. Anaphylactic reaction following contrast agent administration was the most common medical complication observed (30% [45 of 151 cases]), of which failure to diagnose developing anaphylaxis or failure to treat the anaphylactic reaction made up the majority of allegations (93% [42 of 45]). Inappropriate management of contrast media extravasation (27% [41 of 151]) and alleged contrast agent-induced acute kidney injury (13% [19 of 151]) were the next most frequent causes of lawsuits. Of the 11 cases of alleged kidney injury that went to trial, all resulted in a judgment in favor of the defense. Conclusion This study highlights the key reasons for medical malpractice lawsuits associated with use of contrast media and outcomes from these lawsuits. © RSNA, 2023 Supplemental material is available for this article. See also the editorial by Trop in this issue.

903 Operative Records at Emergency Inguinal Hernia Repair: Improvements Might Avoid Future Litigation

Abstract Background Chronic groin pain (CGP) after inguinal hernia repair is a multi-factorial problem of variable incidence. The literature is concentrated on the management of CGP after elective repair where litigation for pain accounts for up to 40% of claims for negligence. Method Computerised surgeon-typed operative reports of all emergencies inguinal hernia repairs in a single DGH over two years were scrutinised. Specifically looking for the descriptions of the handling of the spermatic cord and the nerves of the canal. Results Forty-three repairs were performed by surgeons in training using an open approach. The majority were primary hernias (37/43; 86%) and the repair was usually augmented with prosthetic mesh (88%). Cord handling was described in 35 patients (81%) but identification of the ilio-inguinal nerve was documented in only three. No report mentioned ‘seeking but not finding’ the nerve(s). Conclusions Surgeons in training seem to disregard documenting the status of nerves at urgent/emergency repair. Lawyers can be forgiven for arguing negligence if operative records omit observations on vital structures prone to ‘inadvertent’ damage. This needs to be emphasised to all those concerned with the emergency repair of inguinal hernias.

Can we do it better? Consent in dentoalveolar surgery

Obtaining informed consent is essential for any medical or dental procedure. Dentoalveolar surgery poses numerous risks due to the complex environment and anatomy of the oral cavity. Failure to seek and correctly document consent may lead to claims in negligence, as demonstrated by the increasing litigation in OMFS. We audited dentoalveolar surgery consent forms at two different UK OMFS units and found that many forms failed to document important material risks associated with procedures. In an attempt to improve the consent process, we developed a standardised form containing a list of risks for dentoalveolar surgery that can be affixed to the consent form. We suggest other OMFS units adopt this form to standardise the consent process and optimise patient care while protecting clinicians from medico-legal claims.

Learning From the Law: A Review of 21 Years of Litigation for Anesthetic Negligence Resulting in Peripartum Hypoxic Ischemic Encephalopathy

(Anaesthesia. 2022;77:919–928) The authors of this study reviewed 367 negligence claims in the United Kingdom in order to highlight anesthesia-service related errors. Specifically, they reviewed cases of hypoxic ischemic encephalopathy (HIE), which is caused by interrupted oxygen supply to the fetal/neonatal brain. The causes and effects range, but HIE may lead to a neonate requiring lifelong care. Verified maternity negligent claims are expensive and represent a comparatively large quantity of claims submitted to and granted by the NHSLA. In addition, because peripartum HIE is so severe, millions of pounds can be awarded decades after the inciting incident took place. Anesthetists are often included in obstetric and HIE negligence claims as they play an integral role in the wellbeing of both mother and child.

Bagley v. Mt. Bachelor, Inc.: A New Direction for the Enforceability of Sports Waivers?

Abstract In Bagley v. Mt. Bachelor, Inc., the Oregon Supreme Court considered a topic of widespread, daily significance – the enforceability of tort waivers in the context of sports and recreation. Although these Sports Waivers vary considerably in their precise form and deployment, they function primarily to release organizers and providers of sports and recreation from claims of negligence. Almost every adult has signed such a waiver. Indeed, such waivers are so common that one might fairly think that (assuming the waivers are enforceable) the typical sports or recreation provider faces little to no accountability for its own negligence. Bagley stands out among recent cases because it opened new directions for how to evaluate and draft Sports Waivers.

Did court dismiss student's negligence claim?

A female Liberty University student lived at an off‐campus housing complex called The Oasis. The Oasis was “students only.” Although the complex was privately owned, the university advertised The Oasis on its website and allowed students to submit lease applications through its website. The university also shuttled Oasis residents to and from campus. The complex was open‐air, didn't have locked gates, and didn't have trained security staff on‐site.

Covid-19: Exploring medico-legal perceptions amongst orthopaedic surgeons and lawyers.

British national guidelines and laws published by the British Orthopaedic Association and the new Coronovirus Act 2020 favoured treatment of trauma and orthopaedic conditions with non-operative alternatives.A survey was developed for both lawyers and trauma and orthopaedic clinicians to gauge their perceptions on guidelines related to protection of trauma and orthopaedic staff, and on prosecution with respect to future claims. Sixteen questions were designed for surgeons and 11 questions for lawyers. The level of experience and career stages were explored in other questions. A Likert scale (0-5) was used to capture these perceptions. Clinicians envisaged themselves being less protected (mean = 2.6), forecasted a rise in negligence claims (mean = 3.4) and perceived little additional beneficial indemnity influence from the NHS (mean = 1.8). Lawyers felt that public perception would have more influence in negligence claim rates (mean = 2.6) and disapproved of complete immunity for clinicians (mean = 0.5). Disparities between different trauma and orthopaedic grades demonstrated sentiments of comfort with redeployment, preparedness in non-orthopaedic training and protection from litigation. The results reflected the overall anxiety over litigation reprisal shared amongst trauma and orthopaedic staff. Issues with providing sub-optimal care can worsen this overall fear. Feeling unprotected from litigation reprisal can leave clinicians with an additional sense of emotional and professional burden. Redeployment into unfamiliar environments can leave senior clinicians in limbo in contrast to their juniors. Non-surgical options to treat orthopaedic conditions affect both patients and trauma and orthopaedic staff. Feedback from lawyers reassures trauma and orthopaedic clinicians that negligence claims should not rise due to the updated national guidelines.

Pleading and Advocating a Negligence Claim through the Regulation Best Interest Lens

Pleading and Advocating a Negligence Claim through the Regulation Best Interest Lens

Litigation in Septorhinoplasty Surgery: A Pan-Specialty Review of National Health Service (the United Kingdom) Data.

Success in septorhinoplasty surgery can be difficult to assess due to a lack of objective and measurable outcomes. If patients' expectations are not met, it places surgeons performing septorhinoplasty at risk of litigation which can be stressful and costly. The National Institute of health (NHS) Resolution is a government-funded organization in the United Kingdom that provides expertise to the NHS on resolving patient concerns. Data were requested from NHS Resolution for claims involving septorhinoplasty surgery over a period of 5 years between April 2015 and April 2020. Rhinoplasty claims performed by all specialties were included. Data included the claim status, incident details, alleged injury, damages claimed, and damages paid. A total of 31 claims were identified by the study, equating to a total cost of £1,347,336.10. Of the 31 claims for rhinoplasty or septorhinoplasty, 9 cases were open (29%, £962,361.00) and 22 cases were closed (71%, £384,975.10). The common causes for claims were "intraoperative problems (32%)," "failure to warn-informed consent (19%)," and "foreign body left in situ (13%)." The most common injuries were "cosmetic disfigurement (39%)," "unnecessary pain (29%)," and "additional/ unnecessary operation (29%)." This study highlights the need for improved awareness of clinical negligence claims among surgeons who perform septorhinoplasty. Results are applicable to all specialties who perform the procedure. The study highlights the importance of assessing patients' motives and expectations prior to surgery and emphasizes the need for a well-documented rigorous consent process.

Dental negligence: Root cause analysis of an oral surgery expert Witness's experience

AbstractAimClinical negligence claims are relatively common within dentistry and have added to the apprehension felt by dentists, particularly during the COVID‐19 pandemic. Previous negligence claims provide an important source of learning for other dentists through identifying contributors to claims and ways in which these may be prevented in future. This paper looks at the key contributing factors to cases using root cause analysis (RCA) and suggests measures that might be put in place to help mitigate these factors in future.Materials and MethodAn RCA was undertaken of 30 negligence cases formally reported on by a single Oral Surgeon expert witness in Northern Ireland. Common contributing factors identified were stratified into groups and each factor was individually reviewed to identify potential changes to practice that may prevent similar cases in future.ResultsFive key themes were identified as contributing to complaints, and included, task, patient, communication, organisational, and dentist‐related factors. All cases demonstrated contributing factors from multiple themes highlighting the complexity of the work environment and that there are many areas where learning and safeguards can be implemented to reduce the risk of future cases.ConclusionNegligence cases and complaints are increasingly a part of healthcare, and the Covid‐19 pandemic is likely to have compounded this situation due to reduced capacity, access barriers, deskilling, and lack of hands‐on training. There are, however, many ways to manage and mitigate common errors contributing to cases, and we hope to have been able to highlight these and suggest how they may be avoided in future cases.

The actual cost of clinical negligence in the NHS.

John Tingle, Lecturer in Law, Birmingham Law School, University of Birmingham, considers the debate around reform of the system for clinical negligence claims.

Infrared Thermographic Assessment of Spinal Anesthesia-related Temperature Changes During Cesarean Section

(Int J Obstet Anes. 2022;49:103245) Spinal anesthesia is often assessed by the subjective method of cold and light touch perception. Inadequate anesthesia can cause pain during surgery and negligence claims. Infrared thermography (ITH) objectively measures skin surface temperature, which increases during spinal anesthesia due to blood vessel dilatation and increased blood flow. There have been conflicting results in studies investigating skin temperature changes during neuraxial anesthesia in nonpregnant patients. This study aimed to determine whether ITH measured consistent and significant skin temperature changes during spinal anesthesia for cesarean delivery (CD).

What can be done to improve diagnosis of aortic dissection?

Aortic dissection (AD) is rare. Missed AD is a common reason for coronial investigations and civil claims for medical negligence. Recommendations include improved education, supervision and information transfer, reminders in chest pain pathways and higher rates of investigation for AD. Higher investigation rates pose risks to patients and the health system which may not be in balance with the likelihood of AD. The appropriate diagnostic yield of investigation to balance risk and benefit has not been defined. The AD detection risk score pathway has been proposed as a useful diagnostic tool but concerns about its derivation, validation and utility remain. In this paper, we try to draw together published literature and local audit data to develop recommendations about what might be done to reduce the number of missed AD cases in EDs and what the impact of higher investigation rates might be.

Litigation in pediatric otorhinolaryngology: Lessons in improving patient care.

Medico-legal claims involving children place a substantial financial burden on health services and have a profound emotional and psychological impact on clinicians. Our objective was to analyze both the common causes and cost of litigation in pediatric otorhinolaryngology. A retrospective review of all clinical negligence claims within pediatric otolaryngology (0-17 years inclusive) in NHS (National Health Service) England held by the clinical negligence service 'NHS Resolution between' 4/2013 and 4/2020. There were 100 claims in pediatric otorhinolaryngology accounting for an estimated potential total cost of just under £49 million with an average of 14 claims per year. Over half (52%) of claims were related to an operation with cause codes "Operator Error/Intra-Op Problem", "Diathermy Injury" and "Failure to Warn - Consent" most cited. The most common operation cited in a claim was tonsillectomy with an average cost per claim of £47,084. There were 21 claims coded as either "failure to diagnose" or "failure to treat" in relation to cholesteatoma, with an average cost per claim of £61,086. This is the largest study to date analyzing the reasons and potential cost of clinical negligence claims within pediatric otolaryngology. Many learning opportunities exist to reduce patient morbidity, mortality and improve the patient experience through litigation data analysis.

Taking action against medical accidents: A brief history of AvMA and clinical risk management in the NHS.

Established in 1982, Action against Medical Accidents (AvMA)-originally named Action for Victims of Medical Accidents-was effectively the first charity in Britain dedicated to 'patient safety'. This article provides a historical analysis of the origins and work of AvMA, situating its background in the medical negligence 'crisis' of the 1970s and 1980s, growing consumerism in healthcare, and the significant barriers to justice patients confronted following a clinical incident. It also explores AvMA's impacts on evolving attitudes towards patient harm and safety in the NHS. The article asserts that in addition to supporting patients and campaigning for changes in legal procedures, AvMA played an instrumental role in raising the political profile of adverse health events ('medical accidents'). By supporting claimant solicitors and increasing their chances of legal success, AvMA contributed to the rising tide of negligence claims, which incentivised NHS trusts and health authorities to introduce clinical risk management (CRM). By 2000, CRM was being framed as part of a broader mission to improve quality and safety in healthcare, and AvMA was recognised as a key stakeholder in the new patient safety agenda.

GP indemnity for your practice: Who to contact?

State-backed indemnity provides for clinical negligence claims brought against practices in England and Wales, but there is some confusion about who to contact in the event of a claim. Dr Dawn McGuire explains

Medical Negligence Dispute in Malaysia: Choosing Mediation as the Best Constructive Approach to Address the Paradoxes in Medical Negligence Claims

Abstract In professional negligence the most challenging and arduous is medical negligence, which consists of various claims. Medical negligence will usually involve doctors and other medical practitioners. In medical negligence the claimant is allowed to bring a personal injury claim to a court which has the jurisdiction under adversarial system. However it is evident from reported cases that medical negligence claims were mostly unsuccessful. The reason lies on the notion of the burden of proof, which cast a heavy burden on the plaintiff according to the fault system. In medical negligence claims, plaintiffs will more often than not, find it very difficult to discharge their burden of proof. In most countries, professional negligence claims are recommended to be dealt with by way of mediation under Alternative Dispute resolution (ADR). Mediation is believed to be easier than litigation and is less complicated. Malaysia is among those countries which has enhanced significantly the utility of ADR. This paper will endeavour to address the problems in proving medical negligence cases by using one of the strongest tools of ADR which is mediation.

Patient safety and clinical negligence: the importance of reflection.

John Tingle, Lecturer in Law, Birmingham Law School, University of Birmingham, discusses the need for careful consideration when looking to draw lessons from patient safety crises and clinical negligence claims.

End-of-term reports on clinical negligence claims.

John Tingle, Lecturer in Law, Birmingham Law School, University of Birmingham, discusses the annual reports of NHS Resolution and the Medical Defence Union.