Introduction
I have been writing reports on clinical negligence and clinical performance since 1989. In those 34 years there has been several striking and, in some ways, sad things that I have observed. I accept instructions primarily from five main sources: claimant solicitors, defence solicitors, defence organisations, NHS Resolution, and the GMC. From time to time the unusual case will come from an unusual source, including solicitors and regulators in the West Indies, Australia, New Zealand and South Africa. The first thing I have noted is, whilst I get instructed about cases from all over the UK and the Republic of Ireland, how certain hospitals appear to be over-represented, with significant number of cases and other hospitals rarely appear. However, this does change with time, for example there was a hospital in the North-West that would appear at least once a year and sometimes more for about ten years, and then in the last 15 years it has only appeared twice.
The next thing that I have noted is how the same mistakes are being made now, that were being made in the nineties. It is heartening to see NHS Resolution and Royal Colleges trying to get information to clinical staff about common errors, but there is still a huge amount of work to be done in this field.
Consent in ENT surgery has changed dramatically in the last 34 years and as such I will not be discussing it in this article. I have found that even since the Montgomery case that there is a reluctance for cases to be pursued on consent issues alone.
“Dabbling”
I remember Arnold Maran, former President of the Royal College of Surgeons, in about 1993 at a conference on negligence for surgeons advising “do not dabble”. This advice is still sound today, as it was then, and the surgeon that does something on a very occasional basis is more likely to make an error. Two examples come to mind, one was a case of a two-year-old with a collaural fistula, where a surgeon in attempting to excise the fistulous track cut the facial nerve – he had never done this operation before; sadly working only about 40 miles away there was a surgeon who had tackled many of these and had a national reputation for dealing with them. Perhaps if the case had been done jointly, a better outcome for the child would have occurred.
In another case of ossiculoplasty the surgeon decided that he would use histoacryl glue to attach a prosthesis to the head of the stapes bone. Sadly he glued a curved needle to the stapes and when he tried to remove the needle he pulled out the stapes, deafening the patient in that ear. Using products that are not licenced for a particular use is also fraught with problems and can lead to patient injury.
Despite the NHS issuing clear instructions on how to introduce a new procedure to a Trust or a completely new procedure to the whole of the NHS, there are still surgeons today that ignore the advice, develop an operation and try it out on patients without explaining the novel nature of what they plan. Sometimes I see an idea put into practice, without seeking any permissions, that is really a good one in principle, but when it goes wrong in a case it becomes impossible to defend.
Other examples of “dabbling” included first time injecting lateral pterygoids with botulinum toxin, leading to a paralysed palate, causing the patient to nearly drown after the surgeon told him that there was no problem swimming with a paralysed soft palate and he dived into a swimming pool. The surgeon had not considered the risks of the technique that he had chosen, and was not aware that there were safer techniques that could have been employed. In another case a surgeon chose to manage a patient with drooling by performing bilateral tympanic neurectomies. The surgery led to post-operative auditory symptoms, and there had been a consenting failure in that the option of using botulinum toxin was not discussed, though at the time it was a well-established treatment.
Cosmetic Cases
From time to time it crosses my mind “how could any surgeon in their right mind ever think it was a good idea to operate on this person.” Yet in some, the ability to spot the patient that will not be satisfied no matter how good your surgery, how careful the consenting procedure and the time spent in trying to manage expectations, is lacking. Often there are clues. For example, the patient may have seen several other surgeons beforehand and none of them have taken on the case. There may have been other cosmetic procedures about which the patient is not completely satisfied. There are also personality traits. When I teach about patient selection I talk about SIMON and that every SIMON should usually be avoided. Who is SIMON, the Single, Introverted, Male with Obsessive and Neurotic tendencies.
Process
About a third of the cases I opine upon are errors of process. These are, in my experience so far, exclusively NHS cases, but the incident can occur in a private hospital. Fortunately, some progress has been made in avoiding the wrong side operation or the wrong patient operation. There was the case many years ago where twin boys aged six were placed on the same operating list – one was for a tonsillectomy and the other was for adenoidectomy and grommet insertion. On the evening after the operation there was consternation when the mother reported that the child for tonsillectomy had had the adenoidectomy with grommets and the twin for the grommets had his tonsils removed. There was a frantic check of process in the records and the theatre staff interviewed and no error could be found. It was only after the anaesthetist, a cheery jovial man that was superb with children had a chat with the boys and discovered that they had swapped their identity arm bands did it come to light how the error occurred. The Trust introduced a new policy – no twins to be operated on, on the same list. I have to say since that incident I have worked in many hospitals and it was the only hospital that I am aware of that has that policy.
The commonest errors of process are failures to list a patient for surgery or an investigation after telling the patient and GP that the patient was listed; failing to arrange follow-up appointments; failing to read/act upon investigation reports that report an abnormality; failing to chase a patient or even discharging a patient with an untreated serious disorder, or is under surveillance, that has failed to attend an appointment. Examples of these include ignoring a positive ANCA test with a high ESR such that the patient became profoundly deaf and required a cochlear implant; ignoring a post operative radiograph with report for two years showing that a cochlear implant electrode was not inside the inner ear; not acting on a radiograph report of a malignant tumour for six months, ignoring a radiology report of a vestibular schwannoma until the patient represented with the tumour so large that gamma knife treatment was no longer an option.
Common Errors in Surgery
Cases brought on errors of surgical technique are unusual and often unique. This article is too short to cover all, but there are some which occur again and again.
Severing the accessory nerve when undertaking a biopsy in the posterior triangle is one. There are two surgical techniques both of which can be performed under local or general anaesthetic. The best and safest technique is to undertake the biopsy under a general anaesthetic without the use of a local anaesthetic that could interfere with accessory nerve function. The nerve usually has an anatomical reliable course and so the nerve is identified first in an area of normal anatomy and then traced toward the area where the pathology lies. The pathological area, usually a node, is then excised. However, the downside to this is often the scar is quite large. If the second technique is employed which is to incise the skin over the lump and then excise the lump staying close to the lump during the dissection, the patient must be warned that using this technique carries a greater risk of injuring the nerve. The consequences of such an injury need to be explained. In most cases it is hard to defend if the first technique described above has not been employed.
In my practice, cases involving orbital injury in endoscopic sinus surgery seems to be on the wane. This might because other experts are being used, but I certainly was regularly instructed on such cases between 1990 and about 2008 several times a year. Now a I have probably only been instructed on such cases about five or six times in the last 10 years. I would like to think that this is a reflection of improvements in training. Cases where the orbit has been entered can usually be defended. It can happen to the most experienced surgeon and I would say that if it hasn’t happened to a surgeon it is just that either they are lucky or they haven’t done enough cases. If the surgeon recognises the orbit has been entered, then injury is unlikely to occur unless there is a bleed into the orbit. However, where it is clear that the surgeon has not recognised the complication and goes on to remove muscle or nerve then defence is not possible. Similarly, if the surgeon has entered the cranial cavity and goes on to remove brain or blood vessel then it is usually not possible to defend. Occasionally in tumour cases defence is possible.
Cases concerning injury to the recurrent laryngeal nerve are common. Often they will have multiple aspects including consent issues, surgical technique issues and post injury management issues. On surgical technique, accusations that a failure to monitor nerve function is substandard are frequent. However, many older surgeons were taught at a time when monitoring was not common. If the surgeon does not routinely monitor his patients and has a log book giving details of his complication rate and that rate is within the norm, failure to monitor can usually be defended successfully. In thyroid surgery, where the operation makes no mention of the recurrent laryngeal nerve or just states that they were identified, it is more difficult to defend compared to the case where there is detail of which anatomical variation of the recurrent laryngeal nerve was encountered or indeed details has to how the nerve was located and preserved. I had the dubious pleasure watching as a barrister destroyed a surgeon’s reputation. The questioning went something like this:
“How many thyroidectomies have you done?”
“More than eight hundred”
“Presumably you are aware that there are some anatomical variations in the position of the Inferior thyroid artery and the recurrent laryngeal nerve* if you have done more than 800 cases?”
“Yes I am aware”
“What was the anatomy that you found in this case?”
“I don’t remember, I didn’t write it down”
“Well could you draw for his lordship say two or three of the variations that are commonly encountered?”
“Eh, Eh…. It is some time since……, I don’t always see during an operation.. eh, eh”
“You can’t remember, can you?”
“No not very well”
“I put it to you that if you don’t know the anatomy and the common variations you can’t safely perform this operation? This is why Mrs X has had a life changing injury to her voice.”
In future articles I will cover delays in diagnoses, consent, prescribing errors of an ENT nature, equipment, implantable devices and errors in the management of malignancies.
[*] Anatomical variations of the recurrent laryngeal nerve (RLN), such as extra-laryngeal branches, distorted RLN, intertwining between branches of the RLN and inferior thyroid artery, and non-recurrent laryngeal nerve, can be a potential cause of nerve injury due to visual misidentification.
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