Malpractice litigation and spinal surgery in the National Health Service: a single tertiary-level centre perspective over 12 years

Abstract

Introduction

Medical malpractice litigation is a major concern for all spine surgeons. Our aim was to evaluate the incidence and burden of successful litigation relating to the management of spinal disorders over 12 years within a UK NHS tertiary-level spinal unit and compare these litigation costs with those of other specialties.

Methods

We obtained all data held by our claims department from its inception in January 2008 to December 2019. We also obtained costs for the total financial burden incurred by our Trust during this period.

Results

In total, there were 83 closed claims involving spinal pathologies. Over 80% of these comprised negligent surgery (n = 28, 34%), delay to diagnose/treat (n = 25, 30%) and negligent care (n = 18, 22%). The vast majority of claims were withdrawn without incurring any cost to the hospital (n = 59, 71%) and only 24 (29%) resulted in successful litigation for the claimant. The total cost of damages for these 24 successful claims was just over £8 million, including legal costs of £2.5 million, out of total litigation costs of £381 million over this period.

Discussion

Fewer than 30% of initial claims against a tertiary spinal surgical referral unit resulted in a successful financial outcome for the claimant. The total costs incurred were just over £8 million, with one-third apportioned to high legal costs, reflecting the complexity of resolving spinal litigation. Our entire legal expenses accounted for only 2% of the total legal bill paid by our hospital over a 12-year period.

Introduction

Medical malpractice litigation is a major concern for all spine surgeons. When we take the Hippocratic Oath, we accept a great responsibility to see, treat and care for our patients, we do not intend to cause harm. Yet, harm may be caused unintentionally. To establish whether this harm was ‘negligent’ requires the following criteria to be fulfilled under the law of tort: the claimant/plaintiff (patient) must prove that the defendant (doctor) had a duty to the claimant; the defendant breached that duty by failure to conform to the required standard of conduct; and this negligent conduct was the cause of harm to the claimant, from which the claimant was indeed harmed.¹

Since 1995, NHS Resolution, also known as the NHS Litigation Authority (NHSLA), has indemnified all NHS hospitals in England. All claims made against NHS hospitals in England are handled by this authority and generally fewer than 1% of claims reach a full court trial.² A large 5-year review of 978 clinical negligence claims in spinal surgery held by NHSLA found that the total cost over this period was £535.5 million and there was a trend with both increasing volume and estimated costs of claims during this period.³ NHS Resolution data suggest claims related to spinal surgery average over £100 million per year⁴ and, perhaps with these figures in mind, in 2017, the largest UK medical defence organisation, the Medical Defence Union, withdrew cover for spinal surgeons working in the private sector. Moreover, such was the perceived scale of the problem that mainstream media outlets such as The Times reported that NHS spinal surgery errors were costing up to ‘one third of its budget’.⁵

Our aim was to evaluate the incidence and burden of successful litigation relating to the management of spinal disorders within a NHS tertiary-level spinal unit and to proportion them against the entire litigation costs incurred by the Hospital Trust during the same period.

Methods

All cases of open/closed claims against our Trust are held by the claims department in our hospital. This database is, in turn, shared with NHS Resolution and regularly updated.

We obtained all data held by our claims department from its inception in January 2008 to December 2019. This included a short precis of the case from which data were extracted relating to the underlying pathology, nature of the claim, costs incurred including defence and claimant costs. We were then able to create a Microsoft Excel^® database with retrieved data allowing us to focus on the closed claims in this period. We also obtained costs for the total litigation burden; it is worth noting that our Trust has a particular focus on priority specialty areas of ‘high-value, high-volume’ claims, which are described as more than three claims at more than £1 million each.

Results

During the study period, there were 83 closed claims involving spinal pathologies. These are illustrated in Figure 1. Over 80% of these were negligent surgery (n = 28, 34%), delay to diagnose/treat (n = 25, 30%) and negligent care (n = 18, 22%). There were two ‘never events’ comprising a wrong level surgery and retained swab, both of which led to successful claims.

Figure 1 .

Pie chart showing the causal distribution of all closed claims (n = 83): delay to diagnose/treat (dark blue), negligent surgery (orange), negligent clinical care (grey), consent issue (yellow), never event (light blue) and undisclosed (green).

The vast majority of claims were withdrawn without incurring cost to the trust (n = 59, 71%) and only 29% (n = 24) resulted in successful litigation. Figure 2 shows a direct comparison between the withdrawn and successful claims. As is evident, the majority of complaints in each of the causal areas were withdrawn, except for ‘consent’. Here, the reverse was true in that in three of four (75%) complaints, the claimant was successful. Three cases involved inadequate consenting without a full explanation of the intended procedure (lumbar decompression and fusion surgery), and one case in which the alternatives to surgery were not fully explained.

Figure 2 .

Pie chart comparisons of (a) withdrawn (n = 59) versus (b) successful cases (n = 24): delay to diagnose/treat (dark blue), negligent surgery (orange), negligent clinical care (grey), consent issue (yellow), never event (light blue) and undisclosed (green).

Focusing on the more prolific successful claims: ‘negligent surgery’ involved neural injury (four cases), inadequate decompression (two cases), incorrect level (one case), vascular (one case) and bowel injuries (one case); the ‘delayed’ cases mostly comprised those leading to a (late) diagnosis of cauda equina syndrome (six cases), managing a cerebrospinal fluid leak (one case) and diagnosis of multiple myeloma (one case).

 Figure 3 shows the trend for all 83 closed cases in our unit over 12 years and as is evident, there is a steady upward trend.

Figure 3 .

Graph showing trend for all 83 closed claims from 2008 to 2019

Costings

Examining the costs of damages in the successful cases, negligent surgery, delay and consent accounted for the largest amounts, as listed in Table 1. The total cost of these damages for all successful claims was £5,517,961.77 (five were undisclosed payments).

Table 1 .

Costings for all successful spinal claims

Reason for successful claim	No. of claims	Cost (£)
Negligent surgery	7	10,000–1,658,000
Delay	6	14,000–690,000
Consent	3	12,500–120,000
Never event	2	5,000–28,720
Negligent clinical care	1	28,720
Total	19	5,517,961.77

Further analysis apportioned £2,666,969.24 towards legal costs, both claimant (£1,729,655.49) and defence (£779,463.92), which gave an overall cost of spinal claims of £8,027,081.18.

Comparison with other specialties

Within the 12-year study period, our hospital paid out £381,318,490, which means that overall spine service costs accounted for approximately 2% of this payment. Our hospital’s priority areas around ‘high-value, high-volume’ specialties are shown in Figure 4 and compared with spinal surgery. This shows that just over 85% of the total litigation costs are shared among these six high-value specialties (obstetrics 51%, paediatrics 12%, neurosurgery 9%, emergency department 5%, orthopaedic surgery 5% and general medicine 4%).

Figure 4 .

Total costs for all high-value, high-volume claims and spinal surgery

Discussion

This study shows that the majority of spinal claims are ultimately withdrawn, with fewer than 30% resulting in a successful financial outcome for the claimant. The total costs incurred over a 12-year period in our centre were just over £8 million, with one-third apportioned to high legal costs, reflecting the complexity of resolving spinal litigation. Despite being a tertiary referral centre and performing very complex spinal operations, our unit accounted for only 2% of the total costs during this 12-year period.

Machin et al’s 5-year review of clinical negligence claims held by the NHSLA found that the most common causes for claims were judgement/timing (52%), interpretation of results/clinical picture (26%), unsatisfactory outcome to surgery (20%), fail to warn/informed consent (8%) and never events including wrong site surgery or retained instrument post operation (3%).³ In a review of 235 successful claims, Quraishi et al reported that injury to the spinal cord (20%), inadequate postoperative care (15%) and infection (11%) accounted for spinal litigation in elective cases compared with missed fractures (42%) and cauda equina injuries (24%) in the emergency setting.⁶ Interestingly, in this acute setting, 60% of all claims were actually attributed to non-surgical specialties. This may imply that we, as spinal surgeons, could be paying for errors by non-spinal surgeons and emphasises the importance of ongoing education to our colleagues in the multidisciplinary team.^1,6

With regard to consent, in the current series three of four complaints were actually successful. Historically, the early doctor–patient relationship adopted a paternalistic approach, implying that patients were like children and the doctor knew best. But with time, and driven by litigation, there was a formal need for consent. Gunzburg, in his 2015 presidential address⁷ highlighted the seminal ruling of Schloendorff v. Society of New York Hospital (1914)⁸: a surgeon who removed a fibroid tumour after the patient had consented to an abdominal examination under anaesthesia, but had specifically requested that no operation be performed, was condemned by the judge who ruled that ‘a surgeon who performs an operation without his patient’s consent commits battery’. Over the years, the concept of consent became described in terms of negligence rather than battery.⁷

In Bolam v. Friern Hospital Management Committee (1957),⁹ the judgment stated that a doctor is not negligent if he/she has acted in accordance with a responsible body of opinion. This was still paternalistic, but all changed with the case of Bolitho v. City and Hackney Health Authority (1998),¹⁰ which narrowed the scope of the test, stating that the court must be satisfied that the body of opinion relied upon has a logical basis, that is the legal system was now firmly in control of whether the doctor was negligent or not, even if the doctor’s actions were consistent with a responsible body.

In Sidaway v. The Bethlem and Maudsley Hospitals (1985),¹¹ the standard of information given during consent should be judged using the Bolam Criteria. However, Lord Scarman disagreed with this judgment, and stated that disclosure of a risk should occur ‘where the risk is such that in the court’s view, a prudent person in the patient’s situation would have regarded it as significant’.^12,13

The progression to a more patient-centred approach to consent continued with Pearce v. United Bristol NHS Trust (1999).¹⁴ Lord Woolf affirmed that doctors were responsible for disclosing to the patient any ‘significant risk, which would affect the judgment of a “reasonable patient”’. The more recent case of Montgomery v. Lanarkshire (2015)¹⁵ has led to a further requirement for surgeons to tailor consent to the individual patient involved, rather than to the procedure. As a result of the Montgomery ruling, the Royal College of Surgeons of England has recently issued guidelines for surgeons on the process of gaining consent. Pertinently, these guidelines state that the consent process should be tailored to the individual, all treatment options should be given along with their material risks, and that the discussion should be written and recorded on the consent form and elsewhere.^16–18 Furthermore, a formal consent checklist has also been suggested to ensure that all aspects of the consent process have been completed satisfactorily prior to the patient undergoing the planned operation. Completion of such a checklist would go a long way to preventing hindsight bias from triggering potential negligence claims.¹⁹

However, at the other end of the spectrum, it has been shown that patient recall of information conveyed at the time of consent remains poor.²⁰ Perhaps a more patient-focused approach with a ‘request for treatment’ form completed by the patient with his/her questions for the procedure would be more useful but would clearly prolong the consent process and test those with a limited grasp of the language in which it was written.²¹

With patient recall of risks of a spinal procedure being better if the consent was gained more than 14 days compared with less than 2 days from the operation, another option is to have procedure-based consent forms and even questionnaires just prior to the procedure, which test the patient’s recall of the risks.¹⁸ These can be combined with information booklets, written and illustrated for a ‘reasonable’ patient to comprehend and a ‘patient-centred’ dialogue, which again the patient would need to know.²²

The Getting It Right First Time (GIRFT) project has identified that the lack of fully informed consent played a role in many of the claims attributed to ‘unsatisfactory outcome of surgery’.⁴ Many of these claims are potentially avoidable through an adequate consent process in which an informed patient is involved in shared decision-making. There is an urgent need for the widespread uptake of appropriate clinical processes, with adequate documentation, that allow all medical staff performing procedures that require consent to be compliant with the principles defined by Montgomery. Once this has been achieved, there should be a significant and lasting reduction in the costs associated with clinical negligence in the UK.¹⁹

The current medico-legal system places significant emotional, time and financial burden on doctors and their indemnity providers.²³ It is reported that nearly all physicians experienced emotional distress, with an estimated one-third facing symptoms of major depressive disorder.^24,25 Overall, the effect of these is to promote ‘defensive medicine’, in which more tests, such as imaging, are ordered with the primary goal of preventing litigation or to defend oneself should it occur.²⁶

It has been stated that 80% of doctors in surgical specialties will face a litigation claim by 45 years of age, but only 22% involved payments from the doctor.²⁷ A recent study of 103 malpractice cases from the USA found that spine surgeons defended themselves successfully in 75% of cases and this is similar to our study in the NHS, where 70% of cases were withdrawn.²³ Although the current malpractice environment is evolving and the number of claims against spinal surgeons has increased steadily over the past 12 years in our unit, successful litigation accounted for only 2% of the total damage/litigation costs of our Trust. Total spend was dominated by the six identified specialist areas, with obstetrics accounting for just over half of the total spend.

Through analysis of the data presented in this study (bearing in mind that five payments were undisclosed), the apparent long-held belief of the relative risk of litigation attached to the spine service against other specialties is indeed an overestimation. Further, this relative risk is reflected in the delivery costs for every surgical intervention we have carried out. The GIRFT report⁴ states that ‘the cost of claims varies depending on the procedures being performed, the age of the patient and the trust or surgeon performing the procedure. For example, the average estimated litigation cost per spinal surgery (including procedures for back and radicular pain), per admission in adults, is estimated to be £441.’ This same cost is over £900 in our Trust and even higher in those aged 0–18 years. Subsequently, the fiscal viability of some of spinal interventions that we perform has come under scrutiny, partly due to this additional cost. This realisation becomes even more relevant when the rate of reimbursement for clinical activity is predetermined and fixed at a national level, where pricing schemes have lagged behind by many years the rapidly rising inflation rates and costs of delivery.

There is no doubt that there needs to be renewed focus on getting the basics right: prompt diagnosis, careful surgical technique and thorough operative multidisciplinary cooperation and planning, detailed informed consent, clear communication and documentation. Furthermore, it has been highlighted that clinical staff should learn from claims in conjunction with learning from complaints, severe untoward incidents and inquests.⁴ This will likely lead to improved patient care and reduce costs, both in terms of litigation itself and management of the resulting complications of potential incidents. Lastly, the true costs of delivery of spinal services and litigation should be studied further, as this research suggests that it is not as high as previously estimated.

Conclusion

Less than 30% of initial claims against a tertiary spinal surgical referral unit resulted in a successful financial outcome for the claimant. The total costs incurred were just over £8 million, with one-third apportioned to high legal costs. However, our entire legal expenses accounted for only 2% of the total legal bill paid by our hospital over a 12-year period.