When might an operative complication be regarded as acceptable? Part 1: Surgical factors that influence courts when finding fault during litigation and When might an operative complication be regarded as acceptable? Part 2: Judicial factors that influence the finding of fault during surgical litigation

A selection of abstracts of clinically relevant papers from other journals. The abstracts on this page have been chosen and edited by John R. Radford.

Abstract

Will the 'professional duty of candour' influence the number of claims for negligence?

Main

Wheeler R, Blackburn S et al. Ann R Coll Surg Engl 2015; 97: 98–101

Wheeler R, Blackburn S et al. Ann R Coll Surg Engl 2015; 97: 180–183

Causation is explored in the first paper. In the second paper by the same authors, the judicial view of surgical errors is examined. Neither of these papers are straightforward, both peppered with legal argument. Although the cases cited are from general surgery, the principles apply to dentistry.

When considering causation (for example, Hendy v Milton Keynes Health Authority (No 2) [1992] 3 Med LR 119–127), the surgeon pleaded that the ureter was ligated erroneously because it was placed in an abnormally lateral position. However, the 'but for' test was met ('but for the defendant's act, would the harm have occurred?') when it was shown at a reparative operation, together with other evidence, that the ureter was sited normally.

The importance of making clear and contemporaneous clinical notes is asserted in the second paper. It is 'extraordinary' if a detailed analysis of an untoward event is not made in the clinical notes [Tagg v Countess of Chester Hospital NHS Foundation Trust [2007] EWHC 509 (QB)]. Although such notes may not alter the outcome of litigation, it may dissuade the claimant from pursuing the case.

The relationship between negligence and candour is touched upon. Seminal inquires such as ...children's heart surgery at the Bristol Royal Infirmary 1984-1995: learning from Bristol and The Mid Staffordshire NHS Foundation Trust Inquiry have placed the 'professional duty of candour' (Openness and honesty – the professional duty of candour – Professional Standards Authority) at the forefront of medical ethics. Reporting of adverse incidents and the Confidential Reporting System for Surgery (CORESS, http://www.coress.org.uk/) are tools that can be used to facilitate candour. It is noted that a court concluded it was unacceptable (Fenech v East London and City Health Authority [2000] 1 Med LR 35–40) that there was lack of frankness by a surgeon after a broken needle tip remained in the patient's tissues. This fact emerged some 34 years after the event.

When supervising trainees, the burden is with the consultant to be satisfied that the trainee not only has sufficient experience, but that this skill has been practised recently (Greenhorn v South Glasgow University Hospitals NHS Trust [2008] CSOH 128).