Surgical negligence is now a significant problem in Ireland.
In recent years, surgery has been the most common healthcare service giving rise to medical negligence claims against the State[1].
According to the State Claims Agency - the body that represents the Health Service Executive in negligence actions, there have been more than 5,000 reported surgical ‘incidents’ every year in public healthcare enterprises in recent times[2]. Of course, this does not include incidents which went unnoticed or those which were swept under the carpet through a failure to make open disclosure to the patient and thereby and went undisclosed and unreported. Nor does this figure include surgical ‘incidents’ in private hospitals.
Below we provide an overview of just some of the many complex and fascinating issues that arise in the context of our work as medical negligence solicitors working on cases relating to surgical negligence.
The first part of this piece discusses some of the categories of surgery which commonly give rise to issues of negligence.
The second part examines the situations in which surgical negligence typically arises. This is broken down into the stages before, during and after surgery.
We then turn to a discussion of the types of injury or damage that can result from negligent surgery.
In the concluding part below, we will illustrate the process of assisting victims of surgical negligence with a case study. The case study sets out the timeline of a typical recent case from its commencement up to the time of its successful conclusion.
Types of General Surgery:
We begin by looking at the categories of surgery that we commonly encounter.
Surgery can be categorised in a number of ways:
By location:
Inpatient procedures are performed in a hospital and involve a stay of at least one night and outpatient procedures occur in an outpatient department with a same day discharge. When we think of surgical negligence, we generally tend to think of high-risk inpatient, complex procedures such as obstetrics. However, even though outpatient mishaps are equally as common, recent studies have shown that the outpatients surgical setting has received less attention and focus on patient safety settings.[3] This needs to change, with an increased number of procedures being undertaken in the outpatients setting.
By body part:
Surgery is commonly categorised by body part, for example, cardiac surgery (performed on the heart) gastrointestinal surgery (performed within the digestive tract and its accessory organs) and orthopaedic surgery (performed on bones or muscles). A 2014 American study indicated that rates of negligence claims were higher among cardiologists than physicians overall. While, orthopaedic surgery is another area which gives rise to a significant quantity of medical negligence claims in Ireland.
Based on purpose:
Exploratory surgery is performed to aid or confirm a diagnosis. Therapeutic surgery treats a previously diagnosed condition. Transplantation is a surgical procedure in which an organ or tissue is removed from a donor site and placed on the body of a recipient. Cosmetic surgery is done to subjectively improve the appearance of an otherwise normal structure. In recent years, there has unfortunately been an increase in cases of negligence arising out of cosmetic surgery.
Based on urgency:
An elective procedure is one that is planned in advance, rather than one that’s done in an emergency. The Courts generally expect a greater focus on pre-operative explanation of risks and complications in cases involving elective procedures.
Situations in which surgical negligence typically arises:
Medical negligence occurs where the care a patient receives has fallen below an acceptable standard and they have suffered injury as a result.
There are articles elsewhere on this website which explain in more detail the ‘test’ applied by the Courts for determining whether the medical negligence has occurred [link].
In examining the situations in which surgical negligence typically arises, it is helpful to look at the different stages, before, during and after surgery.
Surgical Negligence - Before surgeryThe preoperative stage can be very brief in the case of acute trauma. Or, it can involve a long period of preparation, during which the patient is subjected to tests, surgical risk is evaluated, medication is prescribed and X-rays and other scans may be required. At this stage, proper planning needs to be undertaken by the hospital, for example checking the availability of surgical essential equipment. This is also the stage where the patient’s consent for the surgery is required to be obtained and the risks and complications are explained.
Pre-operative issues of negligence typically arise in connection with:
The process of obtaining consent is important in order to properly protect the patient’s right to bodily autonomy. There must be an explanation of the risks and possible complications involved in the surgical procedure and an informed consent must be obtained. Healthcare providers must take particular care in obtaining consent in cases of elderly patients, children or vulnerable patients, such as patients suffering from dementia. Special consideration must be given to patients’ capacity to consent. |
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At the pre-surgery stage (and over-lapping with the intra-operative stage) the area of anaesthesia arises. Anaesthesia can be local, where the site is anaesthetised but the patient remains conscious or minimally sedated. Anaesthesia can also be regional, as with spinal or epidural block. With general anaesthesia, the patient is unconscious and intubated and placed on a mechanical ventilator. The anaesthesia may be produced by a combination of injected and inhaled agents.
Issues of negligence can arise in connection with anaesthesia where:
Issues of negligence can arise in connection with anaesthesia where:
- There is a failure to correctly intubate;
- The anaesthesia administered is ineffective resulting in the patient remaining conscious during surgery;
- The patient has an allergic reaction to anaesthesia.
Surgical Negligence - During surgery
The intraoperative stage can involve a number of different techniques such as incision, suturing, stapling, manipulation, ligation, grafting, insertion of prosthetics, transplanting, connection of bones, repairing of a hernia or prolapse, debridement, draining of fluids and removal of debris such as stones or sludge.
Intraoperative issues of negligence sometimes arise in connection with:
The particular considerations which arise in the context of defective medical devices such as DePuy hip implants are dealt with elsewhere on this website. CLICK HERE
Intraoperative issues of negligence sometimes arise in connection with:
- Failing to follow a normal or recognised procedure or protocol;
- Failure by the hospital to devise, operate and implement a suitable and safe system for carrying out the operation;
- Failing to convert from laparoscopic to open surgery;
- Failing to abandon the procedure, if necessary;
- Failing to seek assistance from a more experienced medic;
- Loss of blood, infection / contamination of the operative site /
- Implanting of defective medical devices;
- Failure to have necessary / adequate equipment available;
- Errors in patient identity errors in identification of correct site or type of procedure;
- Removal of healthy tissue or organs;
- Severing vital blood vessels or nerves; and
- Leaving equipment (for example, sponge or needle) in the patient’s body cavity.
The particular considerations which arise in the context of defective medical devices such as DePuy hip implants are dealt with elsewhere on this website. CLICK HERE
Surgical Negligence - After surgery
If the patient was under general anaesthetic, they will require to be taken off ventilation and extubated. The patient is then taken to a post anaesthesia care unit. Once recovered from anaesthesia, the patient is transferred to a surgical ward elsewhere in the hospital or discharged home.
Post-operative care may include managing the patient’s hydration, assisting with mobility and providing appropriate nutrition. The surgical site should be checked for infection, with the outcome of the procedure assessed. Removable wound closures or sutures are removed after healing.
The phase includes adjuvant treatment such as chemo, radiation therapy and anti-rejection medication for transplants.
Months of rehabilitation and recuperation may be required, or the period of convalescence may be brief, depending on the surgical procedure.
Issues of negligence in the post-surgery phase may arise in connection with:
The types of adverse outcomes which arise in cases of surgical negligence:
Surgical negligence may give rise to devastating, life altering injuries and catastrophic outcomes, such as:
Case Study:
In this section, we set out a case study of the journey of a typical victim of surgical negligence.
This case study involves a client who suffered a major vascular-biliary injury. She had been suffering from an acutely inflamed gallbladder and was advised that she required surgery to have her gallbladder removed. She underwent the procedure in 2016.
Although she was able to leave the hospital shortly after the procedure, she did not make a good recovery and her condition deteriorated a few days later.
She developed obstructive jaundice and biliary peritonitis and required major bile duct reconstructive surgery. She required to have a further procedure to remove the part of the liver that had been deprived of blood supply and oxygen. She now requires a lifetime of surveillance because of the real risk of serious complications.
She experienced significant psychological trauma as a result of the prolonged period of suffering. She developed a clinical depression and required counselling.
In 2017, she contacted our office as she was upset that she had been left with such a poor outcome and prognosis. As a mother and a professional person with a promising career, this was devastating news.
In common with all victims of medical negligence, she wanted to arrive at the truth of what happened to her.
We obtained a copy of her medical records and asked a leading, independent, UK based expert to review the records and give an assessment of what had gone wrong and what the effect had been on her outcome.
Although we instruct the expert to assist us in our investigations, it must be stressed that the expert’s primary duty is to assist the Court and to provide an unbiased, independent opinion. Many of our clients take comfort in having their suspicions vindicated by an independent review of their circumstances, finding this acknowledgment to be an important part of the healing process. They will often have been told by their treating doctors that nothing untoward occurred and that there was no negligence.
The UK expert in this case reported that there had been failures of care at each phase of the surgery, prior to, during and after the procedure.
The expert criticised the failure to explain to the patient prior to the surgery that bile duct injury was a possible complication of the surgery.
The expert criticised the quality of the operation notes written by the treating surgeon. The expert noted that the treating surgeon had not documented a recognised technique for correctly identifying the relevant structures. The treating surgeon had removed the wrong part of the bile duct system and had mistakenly identified another part, which meant part of the liver subsequently had to be removed in later surgery.
Worst of all, the expert noted that if the surgeon had used standard techniques during the surgery, then the patient would most likely have made a full recovery and gone on to live a normal adult life.
It is noteworthy that the independent expert highlighted the failure of the operating surgeon to seek help from a more experienced colleague. He queried the fact that the surgeon had applied twenty staples, when at the end of a successful procedure of this type there should usually only be four staples used.
The expert felt that this raised significant questions of lack of insight and skill on the part of the surgeon. The expert did note that there may not have been a more experienced colleague available in the hospital and unfortunately, this is often a feature of cases we have dealt with of surgical negligence, perhaps indicative of a widespread resource problem in Irish hospitals where junior or inexperienced doctors are left to carry out complex surgical procedures.
Finally, the surgeon criticised the fact that after the surgery had been completed, the surgeon failed to appreciate something was very badly wrong, even though this would have been obvious.
Having learned that she had suffered a complexly avoidable injury, our client instructed us to sue the responsible parties in the High Court. This involves preparing a document which sets out what happened and lists out all the things that the surgeon did wrong and the effect this had on the patient’s outcome.
Many clients find this part of the process cathartic, as they get to find their voice and articulate their personal story of mistreatment.
This case was filed with the High Court in September 2017, formally commencing the process against the defendants, the treating surgeon and hospital. Although they eventually conceded that the surgery had been negligent, they still fought the case on the grounds that they denied that the outcome had been caused by the negligent surgery.
It is quite common for defendants in cases like this to deny culpability by insisting that the patient would have ended up in a bad way, regardless of any wrongdoing on their part.
In total, seven expert reports were obtained by our office, including reports which quantified the cost of treatment required into the future, to include annual consultations and liver function tests for life.
The trial commenced in the High Court in February 2020 and settled for a substantial six figure sum shortly after that.
Most cases settle on the day of the hearing or shortly after that.
The defendant’s insurers were also required to pay all of our client’s legal costs, in addition to the settlement sum.
The financial redress received by our client does not compensate for the harm and damage caused by the treating surgeon’s negligence, but it will to some extent make the future more manageable. The process of taking on and succeeding against the responsible parties can also result in great healing for many who are harmed by medical negligence.
Footnotes:
[1] See pages 17 and 40 State Claims Agency National Clinical Incidents Claim and Costs Report 2017: https://stateclaims.ie/uploads/publications/State-Claims-Agency-National-Clinical-Incidents-Claims-and-Costs-Report.pdf
[2] See page 29 State Claims Agency National Clinical Incidents Claim and Costs Report 2017: https://stateclaims.ie/uploads/publications/State-Claims-Agency-National-Clinical-Incidents-Claims-and-Costs-Report.pdf
[3] Medical Mishap and Negligence: It happens in the Outpatients too, Irish Medical Journal. https://www.lenus.ie/handle/10147/296205
Post-operative care may include managing the patient’s hydration, assisting with mobility and providing appropriate nutrition. The surgical site should be checked for infection, with the outcome of the procedure assessed. Removable wound closures or sutures are removed after healing.
The phase includes adjuvant treatment such as chemo, radiation therapy and anti-rejection medication for transplants.
Months of rehabilitation and recuperation may be required, or the period of convalescence may be brief, depending on the surgical procedure.
Issues of negligence in the post-surgery phase may arise in connection with:
- Failure to devise, operate and implement a suitable and safe system or protocol for monitoring after operation;
- The development and persistence of infection;
- Failure to monitor for pulmonary embolism;
- Clogging of surgical drains;
- Inadequately controlled pain; and
- Failure to follow up with the patient.
The types of adverse outcomes which arise in cases of surgical negligence:
Surgical negligence may give rise to devastating, life altering injuries and catastrophic outcomes, such as:
- Wound sepsis or respiratory sepsis;
- Ventral hernia;
- Weight loss, loss of appetite and enjoyment of food;
- Faecal peritonitis or biliary peritonitis;
- Organ damage, reduced heart function, ischaemia (loss of blood supply) to organs;
- Incontinence;
- Requirement for reoperation, emergency repair, reconstruction on multiple occasions, further scans or investigations, placement of drains etc
- Psychological trauma, stress and distress, post-traumatic stress disorder, sleep disturbance, clinical depression, a risk of further more serious psychological illness in future, poor concentration and memory, lack of libido and the patient may require anti-depressants, sleeping pills or other medication and counselling;
- Nerve damage, reduced or altered sensation;
- Scarring / cosmetic deformity. Depending on size of scar, may be at risk of developing an incisional hernia. The scar may lead to cold intolerance;
- Constant pain;
- Brain damage;
- Prolonged in-patient hospital stay, possibly in intensive care;
- May require a lifetime of surveillance and a lifetime of follow up due to the possibility of late, life threatening complications for the rest of life;
- May require transplant and risk of non-availability of transplant organs or tissue;
- Probability of developing a stricture or obstruction;
- Inability to return to full time work or at all;
- Inability to care for children or dependents; and
- Loss of life expectancy.
Case Study:
In this section, we set out a case study of the journey of a typical victim of surgical negligence.
This case study involves a client who suffered a major vascular-biliary injury. She had been suffering from an acutely inflamed gallbladder and was advised that she required surgery to have her gallbladder removed. She underwent the procedure in 2016.
Although she was able to leave the hospital shortly after the procedure, she did not make a good recovery and her condition deteriorated a few days later.
She developed obstructive jaundice and biliary peritonitis and required major bile duct reconstructive surgery. She required to have a further procedure to remove the part of the liver that had been deprived of blood supply and oxygen. She now requires a lifetime of surveillance because of the real risk of serious complications.
She experienced significant psychological trauma as a result of the prolonged period of suffering. She developed a clinical depression and required counselling.
In 2017, she contacted our office as she was upset that she had been left with such a poor outcome and prognosis. As a mother and a professional person with a promising career, this was devastating news.
In common with all victims of medical negligence, she wanted to arrive at the truth of what happened to her.
We obtained a copy of her medical records and asked a leading, independent, UK based expert to review the records and give an assessment of what had gone wrong and what the effect had been on her outcome.
Although we instruct the expert to assist us in our investigations, it must be stressed that the expert’s primary duty is to assist the Court and to provide an unbiased, independent opinion. Many of our clients take comfort in having their suspicions vindicated by an independent review of their circumstances, finding this acknowledgment to be an important part of the healing process. They will often have been told by their treating doctors that nothing untoward occurred and that there was no negligence.
The UK expert in this case reported that there had been failures of care at each phase of the surgery, prior to, during and after the procedure.
The expert criticised the failure to explain to the patient prior to the surgery that bile duct injury was a possible complication of the surgery.
The expert criticised the quality of the operation notes written by the treating surgeon. The expert noted that the treating surgeon had not documented a recognised technique for correctly identifying the relevant structures. The treating surgeon had removed the wrong part of the bile duct system and had mistakenly identified another part, which meant part of the liver subsequently had to be removed in later surgery.
Worst of all, the expert noted that if the surgeon had used standard techniques during the surgery, then the patient would most likely have made a full recovery and gone on to live a normal adult life.
It is noteworthy that the independent expert highlighted the failure of the operating surgeon to seek help from a more experienced colleague. He queried the fact that the surgeon had applied twenty staples, when at the end of a successful procedure of this type there should usually only be four staples used.
The expert felt that this raised significant questions of lack of insight and skill on the part of the surgeon. The expert did note that there may not have been a more experienced colleague available in the hospital and unfortunately, this is often a feature of cases we have dealt with of surgical negligence, perhaps indicative of a widespread resource problem in Irish hospitals where junior or inexperienced doctors are left to carry out complex surgical procedures.
Finally, the surgeon criticised the fact that after the surgery had been completed, the surgeon failed to appreciate something was very badly wrong, even though this would have been obvious.
Having learned that she had suffered a complexly avoidable injury, our client instructed us to sue the responsible parties in the High Court. This involves preparing a document which sets out what happened and lists out all the things that the surgeon did wrong and the effect this had on the patient’s outcome.
Many clients find this part of the process cathartic, as they get to find their voice and articulate their personal story of mistreatment.
This case was filed with the High Court in September 2017, formally commencing the process against the defendants, the treating surgeon and hospital. Although they eventually conceded that the surgery had been negligent, they still fought the case on the grounds that they denied that the outcome had been caused by the negligent surgery.
It is quite common for defendants in cases like this to deny culpability by insisting that the patient would have ended up in a bad way, regardless of any wrongdoing on their part.
In total, seven expert reports were obtained by our office, including reports which quantified the cost of treatment required into the future, to include annual consultations and liver function tests for life.
The trial commenced in the High Court in February 2020 and settled for a substantial six figure sum shortly after that.
Most cases settle on the day of the hearing or shortly after that.
The defendant’s insurers were also required to pay all of our client’s legal costs, in addition to the settlement sum.
The financial redress received by our client does not compensate for the harm and damage caused by the treating surgeon’s negligence, but it will to some extent make the future more manageable. The process of taking on and succeeding against the responsible parties can also result in great healing for many who are harmed by medical negligence.
Footnotes:
[1] See pages 17 and 40 State Claims Agency National Clinical Incidents Claim and Costs Report 2017: https://stateclaims.ie/uploads/publications/State-Claims-Agency-National-Clinical-Incidents-Claims-and-Costs-Report.pdf
[2] See page 29 State Claims Agency National Clinical Incidents Claim and Costs Report 2017: https://stateclaims.ie/uploads/publications/State-Claims-Agency-National-Clinical-Incidents-Claims-and-Costs-Report.pdf
[3] Medical Mishap and Negligence: It happens in the Outpatients too, Irish Medical Journal. https://www.lenus.ie/handle/10147/296205
LocationIndaville, Boherclogh, Cashel, Co. Tipperary, E25 V448
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