How to avoid being sued

This is part of a series on the medicolegal aspects of surgery, in collaboration with the Association of Surgeons of Great Britain and Ireland (ASGBI), which you can also find on www.bjsacademy.com. This article aims to discuss simple and straightforward ways to avoid you having to make any contact with your hospital legal department. My qualifications for giving this podcast include a 30 year career as a general and subsequently a vascular surgeon. In the last 15 years of my career I started writing expert reports from the perspective of a vascular surgeon on medicolegal cases, which I can tell you was an eye-opener. I have seen many patterns, some of which seem preventable. I hope to be able to communicate some of the things I've learned from the other side of the table.

I've never been sued successfully during my career but I have been to court, in fact before I actually became a consultant. My own consultant trainer was sued after scheduling his two trainees, one of whom was me, to conduct a straightforward vascular case which was within our ability. The procedure failed, and as vascular cases sometimes do, the patient ended up with a leg amputation, and we ended up in court. In fact myself and the other trainee were released from the court and the case against us was dropped before it was heard, so the court case was against the responsible consultant only. I stayed to listen and was fascinated by the way the court worked, but also sufficiently interested to look up some of the evidence relied upon by the barrister for the unfortunate amputee, which actually disproved there was a case to answer, and it was won by the defence. Although it was another 15 years before I became a medical expert, it was deeply ingrained in me that the better you are prepared as an expert witness, the stronger your contribution to the case.

We live in a litigious time and particularly in the Western world it is often seen that every operation with a bad outcome is a medicolegal case. Unfortunately in many branches of surgery including vascular, sub optimal outcomes are not infrequent and the consequences in vascular surgery are extreme: amputation, stroke or death. All surgeons have complications, and indeed it is often said that the complications happen to the surgeons who take on the biggest cases and who have the greatest volume of work. I'm hoping over the next 20 minutes or so to be able to offer some very simple pieces of advice that help you avoid being sued. You're probably not going to hear anything that's a great surprise, but the observations are based on being involved in around 500 medicolegal cases and attending court on around 10 occasions as an expert witness. Often when you review the case notes as an expert, you can see how a medicolegal case can start. There is often a pattern, which can be taken back to your own practice and used to avoid contact with your own hospital legal departments, which is good for you and good for your patient.

Perhaps the first lesson in avoiding being sued is to manage your own complications well. The duty of candour law in the UK has changed the way we involve patients and their families when operations don't go as well as expected, or a known potential complication occurs. It's now a legal requirement for all surgeons to explain to their patients and relatives why complications occurred and any part they played in them. Let me give you an example. Some years ago I left a swab in a lady’s axilla during an axillary dissection for breast cancer. The swab count was reported to me as correct but somehow a swab was left inside, which caused an infection over the next few weeks, before it appeared in the wound and was removed by the practice nurse. I was horrified! I explained the process of counting swabs to my patient and that I couldn't account for the error, for error it was. Indeed, now it would be regarded as a serious incident. I apologised profusely, contacted our legal department and arranged for the lady to get a small amount of financial compensation. I then offered to find her another consultant, to which she responded “good gracious no, I trust you after everything you've done for me”. I continued to look after her for several years afterwards and always felt that this was a very good model for managing my own disasters. I suppose the lesson from this is honesty, transparency and a sympathetic approach. This is embodied in the current Duty of Candour.

The way patients are managed now is now pretty standardized; there are guidelines for just about every condition known to man. You may have heard Parv Sains talk about medical law and the principle of reasonable action, which is an action that would be supported by a responsible body of one's peers. That doesn't mean that surgeons are robots, because it's possible to work outside of guidelines and offer treatment that is not standard. However if you do plan to work outside guidelines, or using unconventional or experimental treatment, it is vital that the reasons for doing so are clearly recorded in the notes and preferably discussed and agreed with the relevant patient. So the second lesson is all about note keeping. Good note keeping is very strong protection against being sued. It goes as far as making sure that your notes are legible, and if not, making typewritten notes. This important if you are a typical surgeon with bad handwriting. I suppose since so many records are now digital, this is less important now computerized notes are almost universal, but there are still parts of medical practice where handwriting is used. Writing notes that explain your decisions contemporaneously is very important, avoiding any misinterpretation of your actions. Making sure any letters to GPs or other doctors contain information explaining why a particular procedure is being undertaken and also that it has been discussed with patients and relatives. This is very effective protection.

There are also some don'ts in the clinical notes. It is interesting how often claims against doctors succeed because other doctors are prepared to criticize or comment on their actions within the notes. It's important that you do not criticize your colleagues, or the way someone is treated, in writing in the medical records. Surgeons like to communicate their own wisdom, and often find this difficult to resist pointing out previous errors, but it's a behaviour that must be restrained. Never comment adversely about previous treatment from colleagues in the records. This will be used against them, and possibly against you. Colleagues will not thank you for your clever insights if they end up in a legal case.

It's worth observing that most of us do not work on our own but in teams, often supported by multidisciplinary team meetings , MDTs. All diagnoses and treatment decisions in difficult cases are discussed openly with colleagues and trainees. I have argued, and indeed helped win a medicolegal case in court by explaining to the judge that the MDT was a responsible body, and that if they will agreed that in their hospital, with their individual practice, that the particular technique used was in a patient's interests, then this was reasonable care. It is therefore very important that surgeons are active members of their multidisciplinary teams and attend regularly to discuss their difficult cases. It's also vital that the outcomes of the MDTs are recorded centrally within the hospital, and also individually within each patient's case notes, and of course discussed with the patient. This is a very important level of protection for the treating surgeon. It still amazes me how many hospitals do not record the outcomes of their MDTs, so they are not available at a later date. It is the responsibility of every surgeon to ensure that this happens within their hospital. One other thing about MDT decisions, it is important that the collective decision for treatment is then carried out. Any deviation from the collective plan must be explained, and preferably discussed again at the MDT, otherwise protection if any complications occur would be lost.

The usual process of a medicolegal claim starts with a complaint from a patient, who has usually had an adverse outcome. The complaint is often managed by the hospital complaints process, before the unsatisfied patient takes umbrage and seeks legal advice. As an aside here, many surgeons find the complaints process a nuisance, and a waste of their time. However, if it is possible to explain the situation and pacify the patient, this can avoid a protracted legal case in the future. I strongly advise putting time aside to deal with written complaint promptly and thoroughly, and even meet with the patient and their family to try and smooth things over. Time invested at this stage that avoids a legal case is not wasted.

If the legal firm believes there is a case to answer they will then write to the hospital concerned indicating their intention to lodge a formal claim. If the complaint is accepted at this stage than the matter can be settled. If not, the case may proceed down the route of a formal claim requiring full legal responses and eventually leading to trial in court, if not settled beforehand. The surgeon involved in the case will normally be informed about the legal claim and should be included in the hospital's response. It's astonishing how many surgeons fail to interact with the process even at this stage, despite the fact that they risk ending up as a witness in court, a most uncomfortable experience. The reason of course is that there is no jeopardy for the surgeon involved in either the complaint or the legal case, unless they have broken the law. In most cases they will continue to practice perfectly normally whether the complaint or even the medicolegal case is upheld and a sum of money handed over in recompense. The need to engage in the process of managing the legal case is not there. It's as if complaints and legal problems are someone else's responsibility.

My strong advice to all surgeons involved in a complaint or legal case against them is that if you contribute to the hospital response to complaints and also to any medicolegal cases, there is a much better chance that these will be settled, sometimes with a reasonable compensation, but without acrimony on all sides. It's understandable that some surgeons feel that it's not their own individual responsibility that accidents or problems occur but a problem with their environment and the pressures under which they are working. However, managing the complaint or legal case can avoid a lot more pressure and heartache later. The case should then be used with hospital managers to change the underlying cause if it is a systemic issue within the hospital.

Finally, I would like to come to consent. All surgeons have to consent patients for their procedures, and there are rules about what should be included. Parv Sains has outlined these in his introductory lecture in this series on medicolegal law, already available on the BJS Academy website, and you can read more about them on the Royal College of Surgeons website. I hope many of you will also take the time to listen to the lecture given by Nadine Montgomery, after whom the Montgomery principle was named. She explains some of the issues concerning consent from a patient’s perspective. Her webcast makes harrowing but important listening. We aim to revisit some of the themes uncovered later in this series of podcasts. The main messages to surgeons about consent are that they should know the rules, they should take each consent process seriously and allow time for questions, and that the list of potential adverse events should be relevant and comprehensive (and preferably for high volume or major procedures, agreed by all surgeons undertaking the procedure in the hospital, maybe using a sticker). When I was in practice, I always thought that the official written consent for elective surgery should be a formality, and that a discussion about the risks and benefits of a procedure should have occurred already in clinic, and communicated in a letter to the GP, with maybe a copy to the patient.

So there you have it, a quick trip through some simple tips to avoid being sued. I hope you found that helpful. I also hope it will have captured your interest, and that you will seek out the other contributions to the series on the BJS Academy website. Finally, I am happy to hear any comments or contributions you have concerning this topic, which could also be published as part of the series.

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