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Post-Surgical Complications – Unavoidable or Negligent?
Mon 22nd Aug 2011 Clinical negligence
I was surprised to read the following sentence in this article from The Independent on 17 August 2011:
"Thousands of patients are being forced to go under the knife for a second time because as many as half the operations carried out by some NHS surgeons end in failure."
As an experienced clinical negligence lawyer I am not
unfamiliar with stories of surgery that has had a poor outcome, or where
further, and often more extensive, surgery has been required due to a
complication arising. However, even to
me these figures seemed surprising.
However, when you read the article through in full it seems as though the first line may well have been intended to shock and grab the reader's attention, although for some patients who are about to undergo surgery, I am sure the article still didn't make for pleasant and reassuring reading.
The article discusses a study published recently in the British Medical Journal (BMJ), which was carried out by researchers from Imperial College London. It focused on bowel surgery conducted between 2000 and 2008, and considered almost 250,000 procedures. The study reported on the re-operation rate, usually required as a result of infection, leakage from the intestine or internal bleeding. The death rates following surgery were also considered.
In fact, taken across the NHS as a whole, the re-operation rate was found to be more in the region of 6.5% (almost 16,000 patients), which the president of the Royal College of Surgeons, Professor Norman Williams, reportedly said was "quite impressive" and compared well with other countries. Perhaps a more comforting way for potential patients to look at this, is that around 93.5% of operations will be performed that will not result in the need for further surgery due to complications.
The more worrying factor is the so called 'postcode lottery' for health. There is a disparity of complication rates across the country, both in terms of NHS Trusts compared with each other and the individual surgeons concerned. Whilst the Trusts and surgeons are not identified in the report, the discrepancy is noted. The BMJ study reports that complication rates requiring re-operation vary from 0% to 17% between Trusts. Although the variation for re-operation rates between surgical teams is stated in the study as ranging from 0% to 50%, The Independent article advises that the very high and worrying rates occur rarely and are due to unusual circumstances, such as when non-specialist surgeons are forced to operate in emergency situations.
Bowel surgery is indeed specialised surgery and it is not surprising that the centres that deal with the highest number of bowel procedures generally have lower complication rates. However, it must be remembered that no surgery is without risk and there will unfortunately always be unpredictable situations where a general surgeon is faced with a life-threatening situation requiring him to perform bowel surgery that in other circumstances he would prefer to leave to a specialist colorectal surgeon.
The conclusion of the study, whose lead author is consultant colorectal surgeon Omar Faiz, is that as long as the statistical data is reliable, re-operation rates alongside mortality rates are valid indicators of the performance of Trusts and individual surgeons alike. It also concludes that this methodology could be applied to a range of surgical specialties. However, as Katherine Murphy of the Patients Association rightly points out in The Independent article, this is only beneficial to patients if the information is made available, giving them the right to an informed choice.
How this applies to you as patients
My advice to patients approaching surgery is that they should not be afraid to ask questions of their surgeon or surgical team, including what the risks of the procedure are and what level of complication rate they as a team have encountered. Under the NHS Choices system, patients are often able to select the hospital to which they wish to be referred for elective surgery and are able to research to some extent, particularly with the increasing information available on the internet, the experience of the medical and surgical teams at those hospitals. This does not of course apply to emergency procedures.
Prior to the procedure, the surgeon or a member of the team should discuss the procedure with the patient in terms that the patient understands, and explain the risks and benefits of that particular surgery. If there are alternative methods of treatment that the patient wishes to discuss, they should be given the opportunity to do so. In general terms, surgeons should discuss complications that have an occurrence rate of over 1%, but the more disabling the complication might be, the more important it is that this is discussed with the patient..
In my opinion, in order to obtain 'informed consent' this obligation goes further. The patient should understand the potential implications upon their health and lifestyle should such complications occur. This is an issue that regularly comes up when I am consulted by clients about bringing a possible claim. For example, the signed consent form for spinal surgery may simply mention 'nerve damage'. The surgeon considers that he has warned of the possibility of neurological complications but the patient has no comprehension that this means he could be left suffering from permanent bladder and bowel incontinence. Clear communication and discussion in terms that the individual patient is able to understand and apply to their own life, are in my view vital in ensuring that the patient has indeed given informed consent. Unfortunately the position legally is not so clear cut but as a patient you are entitled to this information
I am frequently consulted by individuals who have unfortunately had a poor outcome following surgery, sometimes having suffered catastrophic consequences. I have a client currently who went in for a simple gastroenterological procedure but ended up suffering a ruptured spleen, requiring removal of the spleen, cardiac arrest and ultimately paralysis as a result of spinal cord compression. The case is in its very early stages of investigation and it is possible that each event was simply an extremely unfortunate, but recognised and non-negligently caused complication of the original procedure and subsequent events. Equally though, just because a post-surgical complication occurs that is a known and recognised complication of the procedure, does not necessarily mean that there was no negligence on the part of the treating surgeon, although it can make bringing a claim more difficult. I have through my professional career dealt with many cases where post-surgical complications could and should have been prevented, or very much minimised, had those treating the patient provided an acceptable standard of care. If you have been unfortunate enough to have suffered post-operative complications that you have reason to believe are a result of care that fell below an acceptable standard, it is possible that you may be able to bring a clinical negligence claim if you have suffered injury and disability over and above that which you would have expected following your surgery. If you would like to discuss any such situation, please feel free to contact me or any other member of the Clinical Negligence team at Blake Lapthorn.
For further information please contact Kym Provan, a Senior Solicitor in Blake Lapthorn's Clinical Negligence Team on 023 8085 7317 or at email@example.com
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