Tract records claims analysis

Tract records

Understanding the basis for urology claims may help surgeons manage the risk factors. Dr Vas Kavadas, MDU medico-legal adviser, analyses claims notified to the MDU in this specialty.

Urology is a broad specialty involving the management of a diverse range of pathologies affecting the organs of the urological tract. Treatment may involve a number of surgical techniques (open surgery, laparoscopic or endoscopic procedures, for example). Urological conditions may also be managed non-surgically.

During a recent 10-year period, the MDU was notified of 117 claims for compensation against urological surgeons working in the independent sector. The allegations made by claimants reveal the broad range of risk factors in this specialty, arising from both surgical and non-surgical clinical management.

Identifying those aspects of urology that may be classified as 'high risk' can help minimise risks in the future.  It is important to note, however, that the number of clinical negligence claims received in a particular specialty does not necessarily reflect the number of complaints or patient safety incidents which may arise in that specialty.

The claims examined in this study include those that have been settled, or discontinued, and those that are still active. Some are also statute barred – that is, the claimant failed to bring the claim within the time limit imposed by the statute of limitations.  The three-year period runs from either the date of the incident or the date the patient became aware that harm had resulted from clinical treatment, which may be many years after the incident.

The MDU has represented members in cases where the claimant brought their action eight, 10, 14 and even 17 years after the date of the incident. In some cases, the member had been entirely unaware of any damage to the patient at the time of the incident.

Once a claim is notified it can take many years to reach a conclusion. The MDU's experience is that this can be a significant cause of anxiety to the clinician involved, which is why we always allocate a claims handler to each claim to support the clinician throughout the process.

Cost of claims

Analysis of the overall costs showed that individual damages awards in the specialty of urology are rising. At the same time, legal costs remain disproportionately high, sometimes outstripping the damages awarded by many thousands of pounds.

Compensation awards do not necessarily reflect the gravity of the alleged negligence, but rather the costs involved in restoring the patient to the position they would have been in had the negligence not occurred. Examples include £240,000 for a patient who experienced urinary dysfunction and retrograde ejaculation following a transurethral resection of the prostate, and £483,000 for a patient who suffered paraplegia following a lumbar laminectomy.

If, having been awarded compensation for clinical negligence, a claimant then complains to the GMC as well, the costs of defending a member's reputation and career following a single incident mounts exponentially. In the MDU's experience, the average legal costs incurred in defending a GMC hearing is in excess of £50,000, though this can be much higher.

Urology infographic 

Categories of claim

The majority of claims notified within the 10-year period of the study related to errors during surgery, or post-operative complications. Most operative claims arose from scrotal or groin surgery, followed by prostate surgery, then penile surgery.

A significant proportion related to alleged non-operative errors, the most common being alleged misdiagnosis of cancer.  (See infographic above.)

Claims arising out of surgery to the prostate related primarily to prostatectomies, both open and laparoscopic, and to endoscopic transurethral resection of the prostate.  One of the cases arose out of immediately apparent damage to the rectum which occurred during the procedure, whereas the rest all concerned post-operative symptoms and complications. These invariably related to damage to surrounding structures that took place at the time of the original surgery. Many of the complications reported as part of each of these claims are recognised complications of the procedure undertaken.

Surgical procedures to the groin and scrotum which gave rise to claims include vasectomy, excision of epididymal cyst and surgery for varicocele. Settled claims arising out of these procedures again relate to post-operative complications, including haematoma leading to loss of a testicle and numbness to the scrotal skin.

Claims arising from surgery to the penis involve circumcision and penile augmentation, and occasionally dissatisfaction with cosmetic outcome. In one case there was inadvertent damage to the penile prosthesis, necessitating further surgery. 

Recognised risks of particular procedures may also lead to a claim, often, though not always, as a result of poorly informed consent. In these cases, the patient alleged that they were not properly informed of the risk before consenting and would not have gone ahead with the surgery had they known the risk. Claims also arise out of allegations of misdiagnosis, although in our experience these are not settled. In the period of analysis, they ranged from a missed liver metastasis following removal of a recurrent renal tumour to an alleged delay or failure to diagnose prostatic cancer in a patient being investigated for prostatic symptoms.

Manage the risk

Consent

  • The complications that give rise to claims may, in fact, be recognised risks of the procedure. Therefore, before the patient is asked to consent to the procedure the surgeon must fully explain the procedure and its risks, answering the patient's questions and exploring their expectations, especially where the surgery may have an impact on cosmetic outcome. 
  • Discuss alternatives in ways that a patient can understand, avoiding medical jargon wherever possible.
  • If the consent process is delegated the surgeon must ensure that the staff member seeking consent is qualified and experienced enough to understand the procedure, its risks and complications. 
  • If there is a time lag between consent being obtained and the procedure being carried out, it is important to ensure that the patient still consents to the procedure and it is still appropriate. 
  • Consent must be fully documented with a written record made of the discussions about potential risk, alternative procedures and information given.

Training and experience

  • The surgeon carrying out the surgery needs to ensure that he or she is adequately trained and experienced in undertaking the procedures. This is particularly the case when circumcision surgery is carried out by doctors who are not urological consultants, or are not sufficiently skilled or experienced in laparoscopic surgery and other newer techniques.
  • Ensure that good records are kept and procedures audited for both outcome and complications.

Case history

Failure to follow up

The patient, a 45-year old male, began to experience bouts of pain and swelling in his abdomen and consulted his GP complaining of colicky abdominal pain. The GP felt a urological referral was required and, at the patient's request, referred the patient privately to a consultant urologist, an MDU member.

Following examination, the patient underwent flexible cystoscopy which revealed a large, slightly congested prostate and a trabeculated bladder. The urologist diagnosed bladder outflow obstruction and started the patient on tamsulosin hydrochloride. He also carried out an ultrasound scan and advised the patient he would be contacted for review once the results were available.

The ultrasound scan showed an echogenic area in the upper pole of the right kidney which measured 3.5cm and was contained within the renal capsule. It was recommended that further diagnostic tests or discussion with the radiologists should take place. 

However, the urologist failed to review the scan or to arrange for the patient to attend for review. Nor did he contact the patient's GP to advise that further action was required.

Shortly afterwards, the patient moved to a different area and registered with another GP practice.

In late 2011, five years after the initial urological consultation, the patient underwent a laparoscopic right inguinal hernia repair and returned for urological review. The examining urologist arranged an abdominal CT scan to exclude kidney stones. The scan revealed a 6cm right upper pole renal mass and 5cm mass in the right lung field. The patient underwent excision of the tumours and histology confirmed a clear cell renal cancer. Unfortunately, the patient was found to have multiple metastases and passed away as a result.

The patient's dependents brought a claim on the basis that there was a failure to act on the ultrasound scan performed in 2006.  Expert urologists instructed by the MDU to investigate the claim stated that the results of the ultrasound scan should have been followed up immediately and arrangements made to ensure that the patient was seen for review. A consultant oncologist, instructed to comment on causation, was of the opinion that the mass identified on the initial ultrasound scan was the renal tumour later identified and that on further scanning this would have been diagnosed and the renal cancer treated.  On the balance of probabilities, there would not have been metastatic spread and the claimant would have had a higher probability of survival.

In view of the unsupportive expert evidence, the claim was settled in the sum of £350,000 plus costs. 

Lee Lewis
Senior claims handler

This is a fictional case compiled from actual cases in the MDU files.

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This page was correct at publication on . Any guidance 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.

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