Why Lawsuits in Neurosurgery Occur
We speak with one of the UK’s best neurosurgeons, Munchi Choksey, this month about how the medical sector is often under the litigation spotlight; serving as an expert witness, Mr. Choksey will be revealing in the next two editions of Lawyer Monthly various conditions which are subject to medical negligence and where improvement can be made in order to avoid such lawsuits. This month we will focus on head injuries; Munchi speaks on common problems that arise and the faults in the NHS which add to the ever-present negligence lawsuits.
What are the common conditions regarding head injuries that you often see arise in your role as an expert witness?
There are about ten conditions I deal with fairly regularly, regarding neurosurgical negligence and head injury, is quite common. Approximately a million people a year go to the accident and emergency (A&E) department in England and Wales every year with a head injury; of those, only a small proportion need to be kept in hospital. Around 30-40,000 will be detained in hospital and about 15,000 will need a visit to the neurosurgical department. The reason why things go wrong with head injuries, is due to the fact the problem is not always initially evident.
I have always pointed out to the junior doctors I have trained, that patients with a neurosurgical emergency will seldom walk in evidently displaying that they have a such a problem; it really is up to the doctors and nurses to realise that this is not one of the 50 other patients that have attended in the last week with a more common minor head injury. This patient has the potential of developing a very serious head injury and there are clues that you have to pick up. The most important clue is behaviour rapidly changing on a conscious level; the patient begins behaving in an erratic fashion and doesn’t co-operate which can often lead to abusive behaviour.
The most frequent, yet dangerous assumption made is that the patient is under the influence of drugs and alcohol; when the patient is not sober, there are two further risks posed: the patient is more likely to severely injure themselves, and them being under the influence of such substances often leads to the patient not being treated quickly. In these instances, patients sober up, so if their state is progressively getting worse and their behaviour is becoming more erratic, the problem is likely to be more severe. Unfortunately, these group of patients are ignored and later found in a worsened state.
Response time is the next problem; nowadays there can be a delay for up to two hours to find a neurosurgeon as, more often than not, there may be a lack of beds. This results in consultants phoning back and forth trying to find a specialist, all in the time the patient’s state is deteriorating. Preparing for surgery also takes time, the anesthetists job can take up to an hour to ensure the patient is stable; all-in-all, from the time of injury, it can take up to six to eight hours for the procedure to be underway. For clot removal in the brain, reports from the Royal College of Surgeons suggest that the recommended time span should be four hours and unfortunately this is rarely complied with.
These patients often seek litigation as their quality of life is significantly reduced; due to improper treatment, they often have lifelong disability, are unable to work and look after themselves. The costs of these cases are colossal, and you can imagine why. Care costs can result to around £100-150,000 a year – multiply that by 50+ years and you can see why these are very big cases. I currently have many of these cases seeking litigation where I am presuming the NHS will have to settle.
All-in-all there’s failure: to realise the claimant’s condition, to diagnose that problem quickly, to act upon the diagnosis quick enough, to stabilise and transfer the patient, to reduce cranium pressure and then, from a neurosurgeon point of view, failure to take the clot out quickly.
What are other conditions involving the brain?
The next diagnosis that I deal with quite frequently are hemorrhages – a bleed inside the head -, it is one of these unique conditions which can strike anybody at any time without warning. The most common symptom of this condition, which is due to a burst blood vessel on the brain, is an aneurism; the common symptom is an agonising headache, a sudden explosive pain inside their head and there are virtually no other conditions in medicine that actually do this. The problem is that when a patient arrives at A&E, they may feel fine as the initial small bleed has worn off and so the pain has reduced and the patient is sent home; with an aneurism, however, you are very likely to bleed again, and the second bleed is always fatal or disabling. Failure to recognise the pain was not a migraine or a tear in the neck is common, as the target group for these conditions are people in the 60s – people who are object to suffer with such problems.
As a neurosurgeon, you want to capture the patient when they are awake and talking, when you can get in a treat the aneurism and save their life as if you spot the diagnosis, the cure rate is very good (around 95%). This condition often comes to the attention of lawyers because when patients have their second bleed – if they are survivors, they often survive in a poor state or -, they die. These are tragic cases, involving families suffering due to a condition that was missed.
Infections inside the head – which are not that common these days – is another condition I deal with as an expert witness. Sinus disease is a common factor causing such infection because it can cause an abscess in the brain. Teenagers are more prone to this condition which is often misdiagnosed because the symptoms are often undermined – feeling groggy, blocked sinuses and a depleted mood – are not uncommon in teenagers. Eventually, they’ll become very sick, suffering with paralysis, having fits or a stroke. Once again, when the infection is treated, the patient can be left disabled for years; all of a sudden, a student who was hoping to go to university has no prospect of earning or studying, so you can imagine how lawyers will make a case out of this. These are high value cases, being settled for millions of pounds, and for obvious reasons as you are dealing with the loss of earnings.
Another condition is venomous sinus thrombosis, which lead to bleeds in the brain and pressure due to the bleed; appropriate drugs can easily rid of the problem, but again, the symptoms are undermined. Women are prone to this, as headaches and dizziness often coincide with side effects of the contraceptive pill, leading the GP to not address the seriousness of the problem. In retrospect, you look and wonder why the GP hadn’t picked up the problem, but by the time it is glaringly obvious, it is too late. The skill of medicine is to be able to spot these problems early on.
These cases come up with depressing regulatory and are still being missed, which is a shame as we have good access to scanning and technology; the argument often placed is that not everyone suffering a headache can be scanned. What health services need to consider is that a scan costs around £50, whereas a lawsuit can cost £5million.
Quite often, litigation is not sought after for financial gain, but based on the breach of duty of candour; doctors seldom apologise or try to rectify the mistake at hand by referring the patient elsewhere, and more often than not, they lie and hope the problem at hand will go away. Anger is also a really important aspect of the litigation. Honesty is vital in these situations, but the NHS has a culture of blame.
Reports often blame a lack of funding? To what extent do you agree with this?
Most people blame lack of funding, but the problem is recruitment and retention of high quality of staff, which is reducing. The NHS is in a mess, there are bogus job titles, little knowledge to who is coming and who is going; it is a state within a state. There is a huge emphasis on evaluating behaviour – how the ‘hospital experience’ was – when in honesty it is seldom a pleasant experience for a suffering patient. What ought to be measured is the clinical outcome – was the patient cured, effectively and appropiately and if not, was appropriate action taken? – but as this is difficult to measure and somewhat unpleasant, no real accountability is made in the NHS. That is their biggest problem, instead on focusing on ways to improve their system, they focus too much on trivial problems, such as hospital parking.
