Medicine has never been shy of embracing new and exciting technologies that can improve patient care. But is it possible to gaze into the crystal ball to predict whether those carrying out cutting-edge procedures are more likely to be sued?
One thing is clear - the risk of litigation is not necessarily related to clinical risk or even clinical competence.
A tried and tested procedure may carry relatively little clinical risk, but patients who do not experience the outcome they hoped for may be more likely to be critical of the care they have received or question the actions or competence of their doctor.
At the MDU, we find this is particularly the case if the patient was not given enough information during the consent process, regardless of whether the procedure was actually done well.
Ironically, procedures that carry a relatively high risk of complications, such as certain types of vascular surgery or major colorectal surgery, are less likely to result in the surgeon being sued than procedures with a lower clinical risk, such as privately-funded breast augmentation or refractive eye surgery, carried out for cosmetic or convenience purposes rather than for an underlying medical problem.
In some situations it seems that as a new procedure becomes established and safer the risk of being sued might actually increase, as patients’ expectations of a good outcome are raised.
It can often be years after an allegedly negligent incident before there is any sign of a claim so potential risks might not become apparent straight away. As a result, it is important for us to try to spot problems that are emerging so that we can provide advice and risk management recommendations to our members.
A good example of this is the move over the last 20 years or so from open to laparoscopic surgery. During the 1990s the MDU saw a rise in claims and complaints about laparoscopic surgery and by studying these we could see that perforation of viscera and blood vessel damage were issues, as were reports of retained instruments. This allowed us to warn members doing laparoscopic surgery of the dangers, highlighting the importance of appropriate training and experience and the need for stringent instrument checks.
It seems that as technological advances and mind-boggling new techniques are introduced, like robotic surgery which can potentially allow the surgeon to operate on a patient remotely from the other side of the world, unanticipated new problems may arise. We’ll continue to keep a watching brief.
A longer version of this article is available in the latest edition of the MDU’s Journal.