Litigation related to anaesthesia

Introduction

NHS Resolution has published a new report reviewing 1230 anaesthesia claims in England reported to NHS Resolution between 2008 – 2018. It provides valuable insights to assist in the reduction of litigation and the prevention of harm, in line with the NHS Patient Safety Strategy (2019). The report is co-authored by NHS Resolution’s Tim Shurlock and Tinku Mitra (lead author is F C Oglesby and published in Anaesthesia 5.3.2022). Cost and comparisons were made against a similar published analysis from 1995-2007. The report itself is detailed, setting out the methodology results (with summary tables), with discussion acknowledging the complexity of clinical care/patient and litigation and the conclusions. A summary of the key issues are set out below.

Report

The aim of this report is to:

• Establish the current financial impact of litigation in English NHS anaesthetic practice
• Identify trends in claim patterns and costs
• Assess areas that attract higher levels of litigation and are thereby of high medicolegal risk

This provides an opportunity for shared learning, with a view to minimising harm to patients from avoidable events and reducing future anaesthesia-related litigation.

Anaesthesia is generally a medico-legally low risk specialty, although it is the single largest hospital speciality, with anaesthetists contributing to the care of two thirds of hospital admissions, and is one of the specialties referred to in the litigation metrics as part of the litigation data packs that trusts received in Spring 2021. As pointed out by NHS Resolution, the analysis provides important insights into current and changing patterns in claims distributions that may aid improvements in quality of patient care and reduce future litigation. Further, anaesthesia now accounts for smaller proportions of all claims submitted to NHS Resolution, even though the annual number of claims against anaesthesia increased (overall 62%). The review of claims shows that factors in the claims with the highest mean cost included delayed care, planning, monitoring and consent. The review concludes with a recommendation of the establishment of a structure for national review and learning from all cases of litigation.

The report identified that the most common clinical categories were regional anaesthesia (24%), inadequate anaesthesia (20%) and drug administration (20%). Claims related to airway management (9%), central venous catheterisation (11%) and cardiac arrest (5%) remained infrequent but severe (e.g. airway management (58%) had a severe or fatal outcome) and costly. The proportion of claims relating to regional anaesthesia and obstetric anaesthesia fell significantly, but claims relating to peripheral nerve blockade doubled. Maybe not surprisingly, claims relating to consent have increased by 7% (to 82) relating to failure to obtain adequate consent, which was prominent in cases with a severe outcome. The reports analysis includes categories relating to organisational and human factors which are said to be present in a substantial proportion of claims (categories with the highest mean cost per claim included delayed care, planning, monitoring and consent). The areas of high litigiousness were noted to be inadequate regional anaesthesia, drug allergy and obstetrics.

The authors point out that there are limitations to the data used as the data was produced by non-clinical coders for the purpose of claims management rather than clinical analysis. It is therefore not possible to guarantee that all claims against anaesthesia have been included.

Further, the changing pattern of claims identified (e.g. peripheral nerve blockade have increased and regional anaesthesia decreased) in their analysis reinforces the need for: high-quality pre-operative assessment and planning (including responding to findings and planning for failure); clear two-way communication with patients as part of the consent process; and, when things do not go to plan, recognition of the impact of human factors such as situation awareness and task fixation during emergencies.

Finally, the report highlights that currently there is no formal specialty-level process to explore litigation related to anaesthesia in England, and that the NHS Getting It Right First Time programme produced a recommended structure for learning from clinical negligence claims for use by individual trusts, focusing particularly on orthopaedic surgery. They say that there is likely to be value in a formal process requiring clinician assessment of every anaesthesia-related NHS Resolution case (and most likely in all specialties) to maximise potential national learning from litigation. They recommended that national organisations responsible for anaesthesia safety and quality actively consider this.

Conclusion

The report concludes that the specialty of anaesthesia in England remains at low risk of attracting litigation despite the modest increase in claim numbers and overall costs. There are recurring themes within the claims dataset that merit attention to perhaps reduce medicolegal claims, but more importantly to improve clinical care. Regional anaesthesia and obstetric anaesthesia now represent a lower proportion of claims than previously, though claims related to peripheral nerve blockade have increased.

We hope that you have found the above summary helpful in highlighting the key aspects of the report and also how the issues identified are relevant to the wider patient safety agenda; issues that arise in this specialty, those that are relevant to NHS Resolution/GIRFT litigation packs, and those that arise in claims. If there is anything you would like to discuss or if you require any further assistance relating to the issues raised, please liaise with Alison Brennan.