A 61-year-old previously fit and well man underwent an elective left endoscopic plantar fascia release procedure under general anaesthetic, performed privately by an orthopaedic surgeon, Mr R. Informed consent was obtained regarding the risk for a potential venous thromboembolic event (VTE), such as pulmonary embolism or deep vein thrombosis (DVT).
A thrombosis and bleeding risk assessment was completed by a healthcare assistant who incorrectly scored the patient as “very high risk” (score of 4) due to a hip/knee replacement and hip fracture, which he did not have. Had the form been filled correctly, the patient would have been categorised as “high risk” (score of 2) due to age and BMI. The operation itself was considered “low risk” for VTE.
Postoperatively, the patient was provided with DVT prophylaxis in the form of stockings; on discharge, a VTE leaflet was provided with safety netting advice. Normally, a very high score warrants chemical prophylaxis.
Around 1 month later, the patient was admitted to an NHS Trust hospital and diagnosed with bilateral pulmonary embolism, which required a 6-month course of rivaroxaban for treatment.
The patient instructed solicitors to pursue a clinical negligence claim against Mr R, alleging that, due to a failure of adequate thromboprophylaxis, he had suffered an avoidable pulmonary thromboembolism, right ventricular heart strain with associated pain, loss of amenity, and, as a consequence of the pulmonary embolism, a delay to postoperative physiotherapy to his foot.
After receiving notification of the claim, Mr R sought assistance from Medical Protection Society (MPS), his medical defence organisation. A preliminary clinical and legal review was undertaken by a medicolegal consultant and claims manager who agreed that it was appropriate to obtain independent expert evidence dealing with the issue of liability.
MPS subsequently instructed a consultant orthopaedic surgeon and consultant haematologist to prepare reports on breach of duty and causation.
On the basis of the expert reports obtained, a letter of response was served on the patient’s solicitors, denying breach of duty and therefore causation in its entirety.
This was based on several factors:
- The thrombosis and bleeding risk assessment, where the patient was deemed to be at very high risk, was completed incorrectly, not by Mr R but by the healthcare assistant. This delegation of the completion of the VTE risk assessment to the nursing staff was considered reasonable by the expert.
- Had a correct risk assessment been carried out, the patient would have been appropriately scored as high risk for age/BMI. In the presence of these two minor risk factors, a reasonable body of orthopaedic surgeons undertaking a day case arthroscopic procedure, in which the patient was permitted to fully weight-bear immediately afterwards, would not routinely administer chemical thromboprophylaxis.
- The case was also in line with NICE guidance for the management of VTE risk in patients undergoing foot surgery and with a large UK foot and ankle thromboembolism audit, both of which considered the procedure low risk for VTE.
Causation was also denied, with the following points:
- The patient had developed a pulmonary embolism despite what was considered reasonable management of his VTE risk.
- In addition, the records from the NHS Trust treating him for the pulmonary embolism stated that this was an “unprovoked pulmonary embolism,” implying that there was no underlying cause for it and no evidence to link this to the index surgery.
Following the letter of response, the patient’s solicitors replied, confirming they were no longer instructed in the matter. The claim had been successfully defended.
Learning Points
- Many of the allegations in the patient’s solicitor’s case stemmed from the claimant being incorrectly scored as very high risk on the initial thrombosis and bleeding VTE risk assessment. Whilst it is reasonable for surgeons to delegate the task of completing these risk assessment forms to nursing staff, it is a reminder to ensure that the surgeon in charge of the procedure agrees with the score allocated to their patient.
- This case acts as a reminder that it is incumbent upon all orthopaedic surgeons to make their own independent analysis of the risk for VTE and to document this assessment.
- This case also illustrates how NICE guidelines and national audits can be used to reasonably justify and explain the clinical decision-making of clinicians and to help robustly and appropriately defend negligence claims.
- Finally, in this case there was good documentation regarding informed consent for the risk for DVT and pulmonary embolism. In addition, it was documented that the patient was given stockings and a VTE discharge leaflet. This highlights the importance of good documentation surrounding informed consent and appropriate safety netting.
This article is published as part of an editorial collaboration between Medscape UK and Medical Protection Society (MPS) that aims to deliver medicolegal content to help healthcare professionals navigate the many challenges they face in their clinical practice.
Dr Rebecca Whiticar is a medicolegal consultant at MPS, working on clinical negligence claims and other medicolegal matters. Alongside her medicolegal role, she works as an emergency medicine consultant at University Hospital of Wales and as a medical examiner for NHS Wales.
MPS membership provides the right to request access to expert advice and support on clinical negligence claims, complaints, GMC investigations, disciplinaries, inquests, and criminal charges such as gross negligence manslaughter.