The MDU regularly supports urology members with clinical negligence claims arising out of their private practice. This analysis of urology claims over a recent ten-year period examines the trends observed, the reasons for litigation and risk factors involved. Managing known risks linked to clinical negligence claims is important both to protect patients and to avoid claims being brought.
Beyond claims the MDU assisted many hundreds of urologists with other medico-legal problems over the ten-year period, including GMC investigations, inquests, disciplinary procedures, performance concerns and even criminal investigations. This article, however, focuses solely on civil negligence litigation.
Over the ten-year period, the frequency of claim notifications initially rose to a peak in 2015 and has slowly reduced since then.
Over 75% of claims opened in the period have been successfully defended (closed with no payment of compensation or claimant costs).
Of those that settled, the largest individual case cost the MDU well over £2 million in compensation and legal costs in a claim related to a prostatectomy.
Almost half of the settled claims cost the MDU over £100 thousand each to settle. It is important, however, to remember the level of compensation paid in clinical negligence claims bears little or no relation to the seriousness of the allegations, but reflects the cost of restoring the claimant to a position they would have been in had the negligence not occurred.
When large payments are provided, much of the compensation is to fund patients’ future care or for loss of earnings. These figures demonstrate the need for urologists to have appropriate indemnity arrangements in place as even lower value claims can settle for damages and costs that are beyond the means of most members to pay.
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. The MDU will defend claims whenever possible and will involve members in the conduct of their cases and we will always seek your consent to settle the case.
The reason claimant legal costs as well as compensation payments can be so high is not due to any change to clinical standards but due to a deteriorating legal environment which the MDU has campaigned to reform. You can see more at themdu.com/faircomp
Outcome of cases
Claims that were not settled were eitherclosed because it was possible to demonstrate that the MDU member was not responsible for the poor outcome or discontinued by the claimant, in the face of the MDU mounting a robust defence of the care provided. Cases can also become statute barred or out of time. A claim is statute barred if a claimant fails to bring a claim within three years from the date of incident, or the date of the 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.
Reasons for claims
Poor outcome/complications after surgery
Although the reasons for claims frequently overlap, due to multiple issues being alleged, the single largest reason for urology claims is due to allegations concerning unintended consequences of surgery. The commonest of these in order of occurrence were: infection, renal damage, incontinence and erectile dysfunction. A smaller number of claims involved bladder or bowel perforation, although these can be settled for very large damages and legal costs. Several claims involved retained foreign bodies after surgery.
Delayed diagnosis of cancer
This was the second largest reason for claims. It was frequently argued that had certain investigations or actions been carried out, the patient would have been diagnosed with cancer sooner, which would allow for either an effective cure or would have improved prognosis.
Failure to obtain consent
The third largest cause of claims were allegations around the consent procedure. While consent issues feature in many claims, these cases focussed on whether the surgeon had adequately explained the risk of the procedure. It was alleged that this had an impact on whether the patient would have chosen to undergo the treatment, or may have done so at a later time.
Of the other procedures which lead to claims, the next largest category involved prostatectomies. A number of cases also followed circumcisions and the remaining claims involved the removal of renal stones or gender reassignment surgery.
Manage the risk
Claims involving urologists often focus on a few key areas, such as the surgical technique being inadequate, investigations not being performed early enough or a lack of communication skills which resulted in inadequate consent being taken. There are some common risk factors which if managed appropriately can help to reduce risks. These include:
- Ensure robust procedures are in place for communicating results to the relevant parties to ensure appropriate and prompt follow up and treatment.
- Be aware of the GMC’s guidance on consent and other relevant guidance such as those of NICE.
- Consent should be obtained by an appropriate member of the team and, ideally, by the urologist undertaking the procedure.
- Ensure that the patient is aware of the risks, benefits and complications of the procedure as well as other therapeutic options. Discuss these options in a way the patient can understand, avoiding medical jargon wherever possible. Document this carefully.
- Supporting information such as patient leaflets and information sheets can help patient understanding. The use of these should be documented in the records.
- Check the patient understands the procedure you propose to undertake and is aware of the possible complications.
- If things go wrong, be open and honest with the patient and provide an explanation of what has happened and the likely short and long term effects of this. Say sorry and get advice from the MDU as soon as possible if you believe the incident triggers either the organisation’s or your own duty of candour requirement.
- If there is a time lag between consent being obtained and the procedure being carried out, it is important to ensure the patient still consents to the procedure.
- The surgeon carrying out the procedure needs to ensure that they are adequately trained and experienced in undertaking it. For example, if you plan to carry out a laparoscopic surgery or a circumcision and you do not have the sufficient skills or experience, you should consider referring a patient to a specialist.
- Ensure that good records are kept throughout and procedures audited for both outcomes and complications.
- Offer a chaperone to patients undergoing any intimate examinations.
- Have a system in place to verify the right site and patient undergoing treatment and to cross check information provided against the referral.
An allegation of inadequate consent
The following anonymised case example illustrates the type of scenario that can evolve into a clinical negligence claim.
An elderly man was referred to a urologist in a private hospital as he had symptoms of urinary frequency and hesitation with a poor stream. The GP had noted a significantly elevated PSA result and the patient was seen at urology outpatients several days later.
Following a biopsy, the urologist determined that the patient was suffering from a malignant prostate. The consultant discussed the available treatment options with the patient, including conservative as well as medical treatment. The patient chose to undergo a radical prostatectomy.
The urologist discussed the use of a robot-assisted technique. The operation at the time was technically difficult although the urologist did not believe the patient would be at high risk of any complications. Unfortunately, following surgery, the patient developed both urinary incontinence and erectile dysfunction.
The urologist was notified of a claim. The solicitors’ letter alleged that consent had been inadequate and if the patient had been appropriately consented, he would have chosen a more conservative technique or alternatively undergone the procedure at a later time, when the symptoms became more problematic. It was alleged that the patient’s formerly active lifestyle had been significantly affected by the incontinence and that he had significant psychological consequences as a result of the erectile dysfunction.
The MDU sought independent urology expert evidence. The expert’s opinion was that the procedure had been performed appropriately and the complications were not due to negligence by the urologist. On that basis, the MDU submitted a robust response defending the case. Several months later the claimant’s solicitors confirmed they were discontinuing the claim.
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.