Dr Claire Wratten and Greta Barnes present a detailed look at clinical negligence claims notified by MDU gynaecologist members.
The MDU supports members working privately as gynaecologists who have been notified of a clinical negligence claim against them.
Managing known risks linked to clinical negligence claims is important both to protect patients and to reduce the chance of a claim being brought.
There were a wide range of different reasons for potential claims being brought against them, perhaps reflecting the variety of work carried out by gynaecologists.
Postoperative complications
The most common reason for claims was postoperative complications. These ranged from minor instances of pain, infection or bleeding to very severe consequences, necessitating extensive remedial treatment and in some cases leaving permanent damage or resulting in death.
Over 60% of these cases were successfully defended, including six claims that were won at trial.
In many cases, the complications necessitated additional procedures, either because the original one had not achieved the expected outcome or to repair damage; for example, of organ perforation, recurrent prolapse or incisional hernia.
Damage caused during a procedure was the most common reason for postoperative complications, with the majority of such damage being perforation of the bowel or ureteric injury. There were also several claims involving vascular damage, nerve damage, thermal burns and damage to the bladder and uterus.
In a number of instances, the clinician also allegedly failed to note the damage caused and to take immediate action, which could have meant remedial surgery was less complex and the recuperation period shorter.
One settled claim involved damage to the bowel during a hysterectomy, resulting in the need to remove the bowel and the claimant required a colostomy.
Thermal burns
In another settled case, thermal burns were caused to the uterus and small bowel during a hysterectomy and laparoscopic thermo-ablation of endometriosis, resulting in perforation, resection of the bowel, ileostomy and infection.
A further case, which was successfully defended, involved perforation of the iliac artery during a diagnostic laparoscopy resulting in a prolonged period in intensive care with serious infection, acute respiratory distress syndrome and consequent psychological damage.
In a few instances, claimants suffered postoperative deep vein thrombosis and consequent pulmonary embolism. In another case, a patient sadly died after experiencing massive haemorrhage following the hysteroscopic resection of a fibroid.
Some claims involved items unintentionally left in situ following surgery such as swabs, needles, misplaced sutures or retention of tissue.
These usually necessitated surgical removal. There were also two cases of wrong site surgery involving removal of the wrong fallopian tube or ovary. These claims were all settled on behalf of the MDU members involved.
A handful of claims were brought regarding the development of a fistula, incisional hernia or prolapse after a procedure. In many of these, the claimant experienced permanent consequences, the most common of which being bowel and/or bladder dysfunction.
Settlement of such claims took into account the impact of these problems on the claimant’s day-to-day function and quality of life, as well as the required past and future treatment and management and, in some cases, care.
Vaginal mesh
The second most common reason for a claim being brought against a gynaecologist related to vaginal mesh.
Claims concerned mesh used for both pelvic organ prolapse and stress urinary incontinence, and the allegations generally focused on consent for the procedure in question, with some claims including allegations about operative technique as well.
In terms of the difficulties suffered by the claimants, these included mesh erosion, voiding difficulties, nerve damage, dyspareunia and chronic pain.
Over 70% of the claims were, however, successfully defended. For the claims that were settled, there was a large range of damages payments agreed, ranging from £16,000 up to high six-figure sums to patients suffering severe chronic pain or nerve damage.
Following the surgical mesh pause in 2018, gynaecologists are carrying out far fewer, if any, of these procedures.
However, claims following insertion of mesh are often notified many years after the index operation, and this is based on a date of knowledge argument – that the claimant did not appreciate that they had difficulties due to having mesh or problems did not arise until a considerable time after it was put in.
This can mean that the parties to the claim are hampered in their investigations into the case because the medical records, and contemporaneous patient information leaflets, have been destroyed due to the passage of time.
It has also meant that claims may be notified some time after the gynaecologist has retired.
Delayed diagnosis
Seven per cent of claims arose following an alleged delayed diagnosis of malignancy. The underlying malignancy was gynaecological in all but one case, with almost equal proportions of cervical and uterine tumours and a smaller number of ovarian tumours representing the underlying diagnosis.
Almost 70% of these claims were successfully defended. However, settlement of claims following a delayed diagnosis of malignancy resulted in payment of a six-figure sum in half of the cases settled.
The reason for this is that the delayed diagnosis resulted in metastatic spread of disease. As a result, in some cases additional adjunctive treatment was necessary that would have been avoided but for the delay, causing unpleasant and sometimes permanent side-effects such as neurological damage.
In some cases, the delay also meant that the patient would die of their malignancy, whereas earlier diagnosis would have meant curative treatment was possible.
If a patient has died, and but for the allegedly negligent delayed diagnosis they would have survived, compensation is payable for earnings and/or care that they would have provided had they lived.
Just over 4% of claims followed an alleged delayed diagnosis of a benign condition, most often endometriosis.
However, other conditions in which it was alleged the diagnosis was delayed included premature menopause, pelvic infection and fibroids. Almost all of these cases were successfully defended.
Just over 2% of claims followed an alleged delayed diagnosis of ectopic pregnancy.
It was generally alleged that but for the delay, salpingectomy would have been avoided. Three-quarters of the claims were successfully defended.
Consent
Concerns about the consent process featured in a lot of claims where postoperative complications were suffered and in the majority of claims concerning vaginal mesh.
But, in some cases, consent issues were the main reason for the claim and those cases proved very difficult to defend, with three-quarters of them being settled on behalf of the MDU member.
All the compensation payments to the claimants were under £60,000. The main issue in common with the cases was surgical procedures being performed which, it was alleged, were unnecessary and that with appropriate advice, the claimant would have elected for conservative treatment.
Contraception
Over 5% of claims against gynaecologists concerned contraception. The issues concerned migration of IUCDs outside the uterus resulting in the need for surgical removal or pregnancy, failed sterilisation and problems with contraceptive implants – particularly pain and migration of the implant.
The majority of claims were successfully defended and, in the few that were settled, compensation paid was relatively modest.
Termination of pregnancy
Almost 6% of claims followed termination of pregnancy, with three main issues arising – failed termination resulting in either the need for a second procedure or continuation of the pregnancy, retained products of conception or uterine perforation.
Almost 40% of these claims required settlement, even though these are all recognised risks of termination of pregnancy.
All claims are managed by the MDU based on the unique circumstances of the case, but the fact that these cases could not always be successfully defended underlines the importance of robust pre-procedure processes, detailed discussions with the patient about the procedure and potential risks, and prompt treatment of any complications that do arise.
Fertility treatment
Nearly 3% of claims concerned fertility treatment, none of which were settled by the MDU.
Allegations generally centred around unsuccessful IVF treatment, although the alleged reasons for this varied and included a failure to diagnose endometriosis, incorrect diagnosis of polycystic ovary syndrome and a failure to treat intra-uterine adhesions.
Medication related
There were only a handful of claims related to medication issues, but these included administration of a penicillin-based antibiotic to a patient with a known allergy and problems with post-operative analgesia.
In one case, settlement was agreed at over £180,000 because the claimant developed a functional neurological disorder as a result of the complications from the prescription error.
Inappropriate behaviour
There were a few claims notified to the MDU that concerned alleged inappropriate behaviour by the treating gynaecologist – with the suggestion from the patient being that examinations were sexually motivated.
Particularly concerning in this type of case is the potential for police involvement.
Given the nature of examinations that gynaecologists need to perform, it is essential to ensure that there are arrangements in place for chaperones to be present and the GMC has produced recent guidance on intimate examinations and chaperones.
Symphysiotomy
A handful of claims were brought against gynaecologists practising in the Republic of Ireland, alleging that symphysiotomy procedures, performed several decades before, had been inappropriate.
Compensation costs
This analysis is based on over 330 claims brought against gynaecologist MDU members working in the independent sector. Approximately 70% of these claims were successfully defended, with no payment made to the claimant or their solicitor.
The aim of a compensation payment is to restore the claimant and/or their dependents to the position they would have been in had the negligence not occurred.
When large payments are made, much of the settlement is comprised of funding the future care of seriously injured patients or to compensate them and/or their dependants for loss of earnings and/or pension.
The overall average damages payment made was over £100,000. As set out in this article, the most common reason for a claim brought against a gynaecologist was due to postoperative complications.
Damages paid to the claimants in these cases varied widely; from just over £2,000 for a retained foreign body following a laparoscopic hysterectomy necessitating further surgery, to £760,000 in a claim regarding alleged negligent management of pelvic pain resulting in hysterectomy, bilateral salpingo-oophroectomy and perforation of the bowel.
When a compensation payment is made, the paying party is also responsible for settlement of the costs incurred by the claimant’s solicitor in bringing the claim. The amount sought for claimant costs increases with the length and complexity of a claim.
However, even in a relatively straightforward claim, these costs can be considerable and can exceed the amount of damages paid to the claimant.
In 30% of cases analysed, the claimant’s legal costs paid exceeded £100,000. The largest payment made was over £680,000 in a case where the damages settled for a considerably lower sum of £275,000, in a case concerning complications after a laparoscopy for endometriosis.
The MDU incurs costs investigating and negotiating settlement of those claims that do settle, but in addition, costs can be incurred in the successful defence of a claim.
Costs are incurred on, for example, instruction of independent experts, and solicitors and barristers on behalf of the MDU member. The defence costs spent ranged from under £100 up to £110,000 in claims that were successfully defended, and up to £162,000 in claims that required settlement.
These figures demonstrate the need for gynaecologists to have appropriate indemnity arrangements in place, as even lower-value claims can result in payment of a total sum for damages and legal costs that is considerable.
Quite apart from the financial implications, it can also be very distressing to find out that a patient is bringing a claim against you. If you face a claim, you can rest assured that the MDU’s expert claims handlers and medico-legal advisers are there to support you.
They understand how stressful the claims process can be and the importance of mounting a robust defence of your position. The MDU will defend claims whenever possible and we involve members in the conduct of their cases throughout.
If a case requires settlement, we will always obtain your express consent to do so.
Managing risks
Before undertaking any procedure, it is important to ensure that the patient is aware of the risks, benefits and complications of the proposed procedure as well as other therapeutic options including conservative treatment – if appropriate. These should be carefully documented.
Refer to the GMC’s guidance on consent and other relevant guidelines such as those from NICE.
Provision of supporting written information and an opportunity to discuss questions before the day of surgery will also help ensure patients are fully informed of the reasons for their procedure and the potential risks. Provision of written information should be documented in the medical records.
Consent should be obtained by an appropriate member of the team and, ideally, by the gynaecologist doing the procedure.
A claim may follow a recognised complication of a procedure. Again, the chance of a claim can be minimised by ensuring a thorough consenting process and documenting this.
Consider the patient’s past medical history, medication history and allergies before administering medication.
Ensure procedures are in place to offer a chaperone to patients and ensure familiarity with the GMC’s recently published guidance on chaperones and intimate examinations.
If things go wrong, be open and honest with the patient by providing an explanation of what has happened and the likely short- and long-term effects of this.
Say sorry and get advice from your medical defence organisation. Consider whether the incident triggers the organisation’s duty of candour requirements.
