Learning from General Surgical Cases: Minimise the Risks

General surgeons are one of the largest surgical specialties performing a wide range of surgical interventions. As with all specialties, complications can occur and a patient may suffer an adverse outcome following surgery. As a result, a patient may initiate a claim of negligence against you. A claim may not be pursued for several years after the original treatment and may result in a substantial financial settlement. This may include an award of damages arising from a breach of duty, as well as a compensatory award for ongoing care and loss of earnings.

We understand policyholders work in complex and often pressurised environments, and recognise that a medical negligence case almost invariably causes considerable stress to clinicians, regardless of whether a complaint or legal action is ultimately successful. Please see PMP article, Patient Safety Incidents: Supporting ‘Second Victims’.

We hope that sharing our experiences of general surgery cases will assist you in reducing your risk. Please see our risk tips document Minimise Risks in General Surgery for further information.

PMP claims experience

PMP recently reviewed 695 cases notified to us between 2014 – 2020 by consultants working in independent practice. A significant number of these cases related to general surgery which included, breast surgery (29%), hernia repair (21%) and bariatric procedures (13%).

Complications following surgery may be the result of procedural error, or failure to timely recognise and/or monitor/manage the issues. This in turn means the opportunity for early mitigation of the risk or serious adverse outcome is lost. Cases involving the management of surgical patients, at all stages of the surgical journey, are frequently related to a surgeon’s response to developing complications.

A variety of diagnostic errors, including post-operative infections and delays in diagnosing intra-operative complications were noted. These cases reflected a narrow diagnostic focus, inadequate patient assessments, especially as symptoms escalated, and a failure to communicate effectively.

Contributory factors

Adverse patient outcomes in general surgery rarely arise from a single cause; clinical decision-making, technical skill, procedural complications and ineffective communication with patients may all contribute to an adverse outcome.

Of the cases reviewed, all had at least one contributory risk factor. Contributing risk factors are failures in the process of care that appear to have contributed to the patient outcome and/or to the initiation of the clinical negligence case, or had a significant impact on case resolution.

In 83% of the cases reviewed the surgeon’s clinical judgement was identified as a contributing risk factor, which impacted patient outcomes.

A surgeon’s clinical judgement is informed by:

• information gathered from the patient
• observation
• the practitioner’s own personal experience, knowledge, practice, and critical-thinking skills.

Because clinical judgement is a complex process involving various cognitive functions, it’s easy to understand why it is frequently a key factor in diagnostic errors and diagnosis-related clinical negligence allegations. The prevalence of clinical judgement issues is almost certainly linked with their complexity and the fact that they tend to be less amenable to ‘straightforward fixes’ than other contributing factors, such as system failures.

Suboptimal technical skills such as poor surgical technique or misidentification of anatomical structures may be a contributory factor in a claim and were identified in 61% of the cases. In addition, non-technical skills such as the absence of shared decision-making, poor communication resulting in a lack of informed consent are all contributory factors in cases of adverse surgical outcomes.

Inadequate informed consent is commonly identified as a contributory factor in a patient’s dissatisfaction with the care provided, which ultimately has the potential to lead to litigation. Please refer to GMC guidance, Decision making and consent.

Case example

A patient in her mid-40s underwent a gastric sleeve resection, during which a large hiatal hernia was discovered. The surgeon opted to reduce the hernia, even though the patient had not consented for this additional procedure.^*

During the procedure, a perforation of the oesophagus occurred. Repair was unsuccessful and leaks were noted. A gastroenterologist was called to perform an EGD and stent placement.

Post-operatively, the patient continued to have complications and was returned to the operating theatre nine times in an attempt to repair the leak (stents were too small in diameter, then not long enough, then migrated into the peritoneum via the oesophageal perforation).

Infection, then sepsis developed and the patient endured a difficult journey of recovery. While perforation is a known complication of hernia repair, no consent was obtained.

Contributing factors included:

• Technical skill: poor surgical technique
• Clinical judgement: Clinical decision-making regarding preparedness for subsequent surgeries
• Communication: No informed consent for the hernia repair and failure to properly manage patient’s expectations (specifically with regards to the third surgery).

^* A clinician should not perform additional surgery while the patient is undergoing a scheduled procedure unless an emergency situation arises that is life threatening.

The GMC state in para 31 of Decision making and consent:

“You must be clear about the scope of decisions so that patients understand exactly what they are consenting to. You must not exceed the scope of a patient’s consent, except in an emergency.”

In Summary

As the provision of medical care becomes increasingly sophisticated and complex, it is important to continually attempt to identify and minimise the potential for error in the patient’s care journey.

Careful attention to both clinical and non-clinical processes increases the likelihood of a good outcome and improved patient satisfaction.

Clear and comprehensive communication between doctor and patient is crucial, this includes during the post-operative period.

A meaningful consent discussion, ascertaining from a patient what a ‘good outcome’ would be if the procedure took place, can help you determine whether a patient’s expectations are realistic or clinically achievable.

Diagnostic errors have a number of causes, however, the PMP claims data demonstrates that clinical judgement is the most common contributing factor. The complex nature of clinical reasoning and decision-making makes it vulnerable to various cognitive errors, including knowledge deficits, faulty heuristics (these are useful mental shortcuts and rules of thumb that provide a best-guess solution to a problem) and affective biases/influences. These errors can subconsciously lead to lapses in judgement, which in turn can result in diagnostic mistakes.

If a patient experiences an adverse outcome following surgery, they are less likely to make a claim or complaint, alleging negligence, if a shared decision-making approach has been adopted from the outset of the treatment. This approach should be clearly evidenced in the patient’s medical record.

Finally, it is essential, following an adverse outcome, to investigate, explain and apologise to the patient. Please refer to the GMC’s Openness and honesty when things go wrong: The professional duty of candour.

If you have any queries or concerns surrounding the issues raised in this claims study, please do not hesitate to call the PMP medicolegal helpline, provided by Clyde & Co. The helpline is open 24/7, and contact details can be found on your policy documents or customer card.