1. Medico-legal Aspects of Anaesthetic Practice 10 November 2011 Dr Udvitha Nandasoma Medico-Legal Adviser

2. © 2011 MDU Services Limited Who decides a doctor’s accountability after a clinical incident? Criminal Hearing Criminal conviction if found guilty NHS Trust Investigation Disciplinary investigation Maintaining High Professional Standards NHS Complaints Procedure Local resolution Health Service Ombudsman Coroner’s inquest Verdict on death GMC Fitness to practice hearing Restrictions on practice or erasure from medical register

3. © 2011 MDU Services Limited

4. Anaesthetic claims (private practice)  Claims within the speciality are relatively uncommon  Members expect to be notified of one claim every 35 years, compared to: 1 in 15 yrs – ophthalmology 1 in 8 yrs – orthopaedics  Not all settled as majority notified to MDU are successfully defended or discontinued by claimant

5. © 2011 MDU Services Limited Recurring themes  10 yr period – 130 claims [settled, discontinued or active]  Majority – Dental damage [>50% notifications] – average compensation £1500 for those cases that settled (largest>£10,000)  Death or brain damage, anaesthetic awareness, needle misplacement [approx 10%] – average compensation £100,000 (largest >£2m)  Figures exclude legal costs  For smaller payouts, legal costs can exceed award itself

6. © 2011 MDU Services Limited Awareness and inadequate analgesia  ‘Awareness’ = range of experiences [bad dreams, vague but painless recollections, paralysed but not anaesthetised]  Small number of notified claims/rare  Minority settled  Claims arise regardless of technique – Balanced anaesthesia with relaxant & inhalational agent – Total iv anaesthesia  Misunderstanding/unrealistic expectations  Notes recorded clearly = concerns easier to resolve

7. © 2011 MDU Services Limited Complaints 2011  54 complaint files opened in first 10 months of 2011 Pain clinic6 ICU/ HDU3 Recognized complication 22 Attitude 4 Awareness/ Inadequacy5 Assault1 Other8 Preassessment5

8. © 2011 MDU Services Limited WRONG SITE SURGERY  MDU notified of 63 cases since 2000  4 Related to anaesthesia

9. © 2011 MDU Services Limited How is this relevant to Preassessment?  Consent  Communication – With colleagues – Managing patient expectations  Continuity of care

10. © 2011 MDU Services Limited Consent  Person conducting procedure is responsible for ensuring that the patient has been given enough time and information to make an informed decision, and has given their consent.  Seeking consent can be delegated to an appropriately qualified person. GMC Consent: patients and doctors making decisions together 2009 Paragraphs 26 and 27

11. © 2011 MDU Services Limited Scope of Consent  Do you anticipate that other interventions might be required  Does the consent process adequately reflect the range of practice the patient might experience

12. © 2011 MDU Services Limited Communication with Colleagues  Is there understanding of the patient factors that might need further consideration – Anticoagulation – Medical –Comorbidity – Prescribed Medication  Do you have agreed ways of working where appropriate

13. © 2011 MDU Services Limited Communication with patients  Managing patient expectations – Type of anesthesia – What sensations/ noises might they be aware of – Likely experience of post operative pain

14. © 2011 MDU Services Limited Specific Issues

15. © 2011 MDU Services Limited Dental Damage Risk Management:  Assess upper airway/dentition etc prior to anaesthetic  Clear documentation especially of poor dentition  Record warnings given to patient

16. © 2011 MDU Services Limited Oral and airway damage  Soft tissue structures of – Oropharynx – Nasopharynx – trachea  3 cases notified in 10 year period involving a Laryngoscope/Laryngeal mask  Sore mouth/throat immediately post-op  Recorded warnings may assist if claim brought at a later date

17. © 2011 MDU Services Limited Drug reactions and errors  this few claims from drug errors or adverse reactions  7 notifications (3 resulting in claim) in 10 year period  2 settled – drug administered to patient with allergy  IV drugs through misplaced cannula causing local damage to surrounding tissue

18. © 2011 MDU Services Limited Death and brain damage  4 claims settled in 10 year period  All GA where patient suffered cardiac arrest or CVA  Unique facts in each case  Patients need to be offered relevant information in order to provide informed consent  GMC guidance – patients must be given information re risks and benefits and have their questions answered fully (Consent 2008, para 9)

19. © 2011 MDU Services Limited Aspiration  Very few claims  Large award as patient needed life long care  Presence of small bowel obstruction  If specific steps are taken to minimise aspiration this should be documented

20. © 2011 MDU Services Limited Positioning and pressure injuries  Risks to patients sustaining pressure damage/nerve palsies  Small number of settled claims due to damage from application of prolonged pressure by a piece of equipment  Difficult to defend allegations of negligence successfully  Make a written record of all the steps taken to protect the patient from harm  Document any particular techniques employed

21. © 2011 MDU Services Limited Needle misplacement  10 claims, 4 settled in 10 year period  3 settled – regional anaesthetic administered to wrong side prior to limb surgery  Modest compensation unless nerve injury  Patient Safety Alert: WHO Surgical Safety Checklist, NPSA, 26/1/2009 [npsa.nhs.uk]  4 claims re spinal and epidural alleged nerve damage (1 successful, 3 discontinued)  Clear details re risks were given to patients

22. © 2011 MDU Services Limited Learning lessons  Are there areas where you see your preassessment system not working as well as it should?  Adverse incidents do occur: recognise risks and reflect on ways to reduce the possibility of an error  Effective Adverse Incident Reporting  Departmental Audit  Identify ongoing systemic risks  Develop risk management procedures  Contact MDO for advice

23. © 2011 MDU Services Limited Managing risk 1  Discussion prior to anaesthetic – Why treatment is necessary – Risks involved – alternatives  Record warnings given pre-op – Post op sore throat – Awareness during sedation  Discuss risks specific to that individual if appropriate

24. © 2011 MDU Services Limited Managing risk 2  Develop a routine for pre & post-op assessments  Check PMSHx, allergies, concurrent medications before prescribing new drugs  Document you have checked pressure points and ensure those assisting are aware of risks  Procedures in place to eliminate risk of ‘wrong side’ errors – check records, confirm with patient  If something goes wrong – full explanation, apology [GMC guidance]

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26. MDU Services Limited (MDUSL) is authorised and regulated by the Financial Services Authority in respect of insurance mediation activities only. MDUSL is an agent for The Medical Defence Union Limited (the MDU).The MDU is not an insurance company. The benefits of membership of the MDU are all discretionary and are subject to the Memorandum and Articles of Association. MDU Services Limited is registered in England 3957086. Registered Office: 230 Blackfriars Road London SE1 8PJ. Copyright MDU Services Limited 2011.