A claim for clinical negligence can be brought at any time, often without warning and sometimes many years after the incident occurred. It can be very distressing to find out a patient is bringing a claim against you. If you face a claim you can be assured that the MDU’s expert claims handlers and medico- legal advisers understand how stressful this is and the importance of mounting a robust defence of your position.
There are many factors that can affect the likelihood of a claim being brought against a member, including the extent of their private practice and their individual case mix but broadly, an ear, nose and throat (ENT) consultant working privately can anticipate being on the receiving end of a claim about once every 10 years.
In addition, the MDU assists its ENT members with other medico-legal matters including GMC complaints, inquests, disciplinary procedures and even criminal enquiries. This article, however, focusses on an analysis of a cohort of over 100 clinical negligence claims recently brought against ENT surgical members working in independent practice.
In 75% of claims reviewed, the claim was successfully defended without any payment of damages or claimant legal costs. Of the 25% of cases that were settled, compensation payments ranged from £100 to £2.5 million. Total case costs (including damages, claimant costs and defence costs) averaged over £50,000 per settled case.
The wide variation in damages paid when a claim is settled reflects the variety of different types of case ENT surgeons can be involved in and the wide range of complications that can occur.
Compensation payments aim to return the patient to the position they would have been in had the negligence not occurred. The size of the compensation paid does not reflect the magnitude of the clinical error, but rather the injury to the patient. If the person can no longer work and requires a significant level of care, then considerable damages may be paid.
In this analysis, the highest awards were for neurological injury following surgery. One claimant was paid £2.5 million in compensation following an iatrogenic brain injury during revision (Functional Endoscopic Sinus Surgery) and sustained resultant long-term neurological impairment and lack of capacity.
Three of the five highest payments involved complications of endoscopic sinus surgery. On the other end of the spectrum, the three lowest payments were to patients who sustained damaged teeth during surgery or laryngoscopy.
While claims numbers have remained steady in recent years, the cost of claims has spiralled. This is not due to clinical standards but to a deteriorating legal environment which the MDU is campaigning to reform. You can see more at themdu.com/faircomp
When a claim is settled, the MDU also pays the claimant’s legal costs. Such costs can be considerable and can be equal to or exceed the compensation paid to the claimant. The highest costs paid by the MDU on a single claim were for nearly £400,000.
Even in claims that are successfully defended, the MDU can incur significant expenditure, particularly if there are court proceedings. These costs include obtaining expert advice - which for complex claims can involve multiple specialists - and legal expenditure.
The MDU always investigates claims thoroughly, in order to advise and assist members most effectively. Overall, nearly half of claims (46%) were resolved by the MDU claims handler without the need to instruct a solicitor.
Outcome of cases
Claims that were not settled were either won, discontinued by the claimant or statute barred. A claim is statute barred if the claimant fails to bring a claim within three years from the date of the incident or the date of their knowledge of the alleged harm. This restriction does not apply to children with capacity, for whom the limitation period begins at 18 (16 in Scotland). There is no time limit for patients who lack capacity to conduct their own affairs. Some claims were initially investigated by the MDU but successfully argued to not involve an MDU member.
Figure 1 shows the outcome of the claims in the analysis.
Reasons for claims
The reasons for ENT claims range from post-operative pain or scarring to severe complications resulting in significant further treatment, trauma and in some cases, the patient’s death. There are some key overriding themes of ENT claims which we explain below.
Dissatisfaction with outcome
ENT procedures performed for cosmetic reasons such as septoplasties and rhinoplasties can result in claims of dissatisfaction with the final aesthetic result. Numerous claims arose from patients alleging a lack of improvement or worsening of their symptoms, such as breathing difficulties, snoring, sleep apnoea and sensory loss affecting taste, smell and hearing. These claims will usually involve the cost of refunds, second opinions, revision surgeries and psychological therapy.
A third of the cases alleged inadequate consent, with a focus on failure to discuss risks of complications and failure to warn that symptoms may not be improved. In order to manage a patient’s expectations of a procedure, including balancing the potential risks and benefits, a thorough consent process is paramount. Claims can be defended where a thorough and detailed discussion with the patient takes place and is well-recorded in the notes.
Other cases alleged that the treatment provided was unnecessary or incorrect in the circumstances, or that more conservative treatment options, including medication or no treatment, should have been tried or reviewed with the patient.
In one case it was alleged that non- surgical treatment and a CT scan should have been performed before sinus surgery. Unfortunately the patient died from hyponatremia-induced cardiac arrest after being discharged from hospital. This claim was settled for around £250,000 in compensation and claimant’s legal costs.
Problems that arose in the course of a procedure included:
- diathermy burns causing scarring or nerve damage
- dental damage or loss of teeth
- perforations such as of the septum or oesophagus
- nerve damage and bone damage such as cracking of the orbital plate
- severe bleeding and stroke.
Post-operative complications occurred in 40% of cases. Some were known complications such as pain, nausea, dizziness, scarring, poor healing, infections and mild to major sensory loss.
Neurological damage was seen in several cases. Examples included:
- nerve damage causing muscle paralysis and reduced arm function following excision of a neck lesion
- swallowing and speech difficulties after the laryngeal nerve was damaged during a thyroidectomy
- subarachnoid haemorrhage following revision sinus surgery
- stroke after a septoplasty
- brain infections or meningitis necessitating further procedures and a poor outcome for the patient.
In one case following mastoidectomy and myringoplasty the patient developed sepsis and multi-organ failure secondary to a post-operative infection, although made a good recovery. The case was settled for around £325,000 in compensation and claimant’s legal costs.
Delayed diagnosis or referral
Allegations of delayed diagnoses or referral were also common. The diagnoses allegedly missed or delayed included:
- brain tumours
- sensorineural hearing loss
- post-operative infections or haematomas
- cleft palate
- cancers of the tonsil, skin, nasopharynx, oropharynx and larynx.
In one case, in which a patient died, a delayed diagnosis of malignant otitis externa led to the patient developing bacterial meningitis and invasive laryngeal candidosis. In another case a patient having sinus surgery was found to have a congenital skull defect, which was mistaken for a mucocele. This lead to complications and the need for the patient to have further operations.
Manage the risk
Claims involving ENT surgeons are made for a wide variety of reasons, but there are some common risk factors, which if managed appropriately, can help to reduce risks. These include:
- Manage the patient’s expectations as best as possible in terms of what can realistically be achieved. A thorough consent process is crucial in all ENT procedures but especially for cosmetic procedures or if the treatment risks may outweigh the potential benefits.
- Provide patients with detailed information on all treatment options verbally and in writing and ensure they have appropriate time to make a decision.
- Keep detailed records of your discussions with patients including any phone calls by you or your administrative team, and discussions between you and other clinicians such as GPs, out of hours’ clinicians and other consultants involved. Be aware that many claims are brought a considerable time after events in question.
- Consider more conservative treatment options, and whether all avenues have been exhausted before considering invasive procedures.
- Give appropriate safety netting advice so the patient knows in what circumstances to return for further advice.
- See the patient as a whole not just the isolated issue at hand. This includes consideration of comorbidities and psychological factors.
- Consider your professional duty of candour. If something goes wrong, apologise and notify the patient and any necessary parties as soon as possible.
Septal reconstruction and caudal replacement
A 35-year-old patient had a history of recurrent sinusitis, congestion and nasal blockage and had an angulated nasal septum. A GP had tried conservative treatment using nasal sprays, all of which were ineffective.
The ENT consultant made three diagnoses - a marked septal deviation, nasal tip ptosis and seasonal allergies - all of which were causing persistent nasal obstruction and nasal drip. In the light of unsuccessful medical therapy, the consultant advised that surgery would be required to repair the deviated septum and elevate the nasal tip to correct the airflow. He emphasised to the patient that this was a functional procedure and not aesthetic.
The patient underwent an external septorhinoplasty operation in which a septal reconstruction and caudal replacement were carried out. The patient appeared to recover well.
On review five months after surgery, the patient was noted to have a staphylococcal infection in the nose and this was treated with oral antibiotics and mupirocin-based ointment. A rapid MRSA assessment had been performed on admission, but the infection had not been detected before surgery.
Some months later, the patient reported that although her nocturnal obstruction was now gone and her breathing was better, the left nasal passage felt blocked and she was concerned about a patch of numbness on the nasal tip. She sought a second opinion from another ENT consultant who noted that the nasal septum was in a reasonable position but that there was a minor prolapse of the left lower lateral cartilage which was slightly narrowing the nasal valve. Allergy profiling identified mild allergic rhinitis as the cause of her persisting rhinorrhoea.
A letter of claim was received alleging that the patient had not been fully consented, specifically with respect to the risk of numbness, aesthetic changes to the external appearance of the nose, and the potential for crusting to occur. The claimant also specifically alleged that she was not advised that the surgery might fail to improve her nasal congestion and nasal drip.
The claimant stated that if she had been warned of the possibility of numbness at the nasal tip, as well as a continuing nasal drip, she would not have undergone surgery. Her solicitors made an offer to settle for £2,500.
The MDU sought an expert opinion from an independent consultant ENT surgeon. Having investigated the matter, he said that the surgery had been carried out to a good standard. The expert stated that if the member’s factual evidence about his consenting procedure - that his usual practice was to discuss all the risks verbally with the patient in the consultations leading up to the surgery - was accepted, then the claim could be defended.
On the surgeon’s behalf the MDU robustly denied breach of duty on the basis that the surgery had improved the patient’s symptoms which were due to structural problems. It was made clear that the patient had been told that the external appearance of her nose would change, but that, at no stage, had she been advised that the surgery would improve her nasal congestion and nasal drip. These were unrelated to the structural problems in the nose but were due to an immunological imbalance in the nasal lining, of which the patient was aware. The crusting suffered by the patient was due to the staphylococcus infection, not the surgery.
No further correspondence was received from the claimant’s solicitors.
This guidance was correct at publication 18/11/2019. It is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.