Surgical and psychiatric malpractice compared

by TheEditor

Categories: Investigative, Medicine, Mental Health

As a result of recent media publicity about surgeon’s performance, I began thinking that I rarely if ever see any stories in the media about psychological harm caused by failures in psychiatric treatments. I reflected on this and thought, that with surgery it is easier to spot errors in retrospect because patients can be subject to x-rays, scans and other tests to show physical things that went wrong procedurally. But in psychiatry where we use medications (or  occasionally ECT), there are no scans or easy tests to see into psychological damage. Treatment with lithium may be seen by some as an exception because one can see side-effects on kidney or thyroid that can be tested. But wait – those are physical. It still remains extremely difficult in my perception to quantify and qualify psychological harm done by wrongful or erroneous psychiatric treatment. That led me to compare the categories of harm in either discipline. Incidentally, I was destined in my early years to become a surgeon but did a U-turn. That’s a much longer story. This does not mean that I have any hate or bad feelings towards surgeons.

Introductory remarks

This article will not focus on conduct of either group of doctors, such as fraud or sexual misdemeanours. Whilst harm may be caused to patients from those matters, I focus primarily on core issues of doctor-performance.

In surgical practice, harm typically manifests physically and can be immediately life-threatening. This includes complications such as infections, bleeding, damage to organs, or even death. The harm is often directly related to the surgical procedure and can be quantified using objective measures such as lab tests, imaging studies, and physical examination findings.

In contrast, harm in psychiatric practice is often more subtle and insidious. It can manifest as a worsening of psychiatric symptoms, development of new symptoms, or a decline in overall functioning or quality of life. This harm is often related to misdiagnosis, inappropriate medication use, or ineffective therapeutic interventions.

The harm in psychiatry can be more difficult to quantify due to the subjective nature of mental health. However, it can be assessed using tools such as validated symptom scales, quality of life measures, and patient self-reports. It is unknown at this time what proportion of inappropriate psychiatric treatments result from poor assessments and diagnoses. A careful search of the internet revealed no such studies. [Note my disclaimers]

In terms of the impact on the patient, surgical errors can lead to immediate physical harm and can be life-threatening. On the other hand, errors in psychiatric practice can lead to long-term psychological harm and can significantly impact a patient’s quality of life and overall well-being.

Effects of poor surgeon performance

Poor surgeon performance can lead to a variety of physical harms, which can be categorised as follows:

  1. Intraoperative complications: These are issues that arise during the surgery itself, often as a direct result of surgical error. They can include damage to organs or tissues, unintended lacerations or punctures, and issues related to anaesthesia.
  2. Postoperative complications: These are problems that occur after the surgery, often as a result of the procedure itself or the postoperative care. They can include infections, bleeding, blood clots, wound dehiscence (separation of the surgical wound), and complications from anaesthesia.
  3. Wrong-Site, Wrong-Procedure, Wrong-Patient Errors (WSPEs): These are serious surgical errors where the wrong patient is operated on, the wrong site on the body is operated on, or the wrong procedure is performed. These are rare and ‘rare’ means they happen rarely.
  4. Retained surgical items: These are instances where surgical instruments, sponges, or other materials are unintentionally left inside the patient’s body after surgery.
  5. Delayed recovery or long-term complications: These are issues that may not be immediately apparent but can develop over time. They can include chronic pain, loss of function, or complications related to the surgery such as adhesions or fistulas.
  6. Mortality: In the most severe cases, surgical errors can lead to the death of the patient. This can be due to severe complications during or after surgery, or due to errors such as WSPEs.

The above is not an exhaustive list.

Effects of poor psychiatrist performance

Poor psychiatrist performance can lead to a variety of psychological harms, which can be categorised as follows:

  1. Worsening of existing symptoms: Inappropriate or ineffective treatment can lead to a worsening of a patient’s existing psychiatric symptoms. This could include increased severity of depression, anxiety, hallucinations, delusions, or other symptoms.
  2. Development of new symptoms: Incorrect diagnosis or treatment can lead to the development of new psychiatric symptoms. This could include symptoms of a different psychiatric disorder or side effects from inappropriate medication.
  3. Decreased quality of life: Poor psychiatric care can lead to a decrease in a patient’s overall quality of life. This could manifest as difficulties in relationships, work, school, or other areas of functioning.
  4. Loss of trust in mental health professionals: If a patient has a negative experience with a psychiatrist, they may lose trust in mental health professionals. This can lead to avoidance of mental health care, which can exacerbate existing conditions and prevent the patient from receiving necessary treatment.
  5. Stigmatisation and self-stigma: Misdiagnosis or inappropriate treatment can contribute to stigmatisation of the patient. This can lead to self-stigma, where the patient internalises negative beliefs about mental illness, leading to decreased self-esteem and self-efficacy. I have seen tangible evidence where psychiatrists would apply the diagnosis of EUPD as a ragbag diagnosis, when patients become more difficult and disturbed in behaviours.
  6. Suicidality: In severe cases, poor psychiatric care can contribute to suicidality. This could occur if a patient’s symptoms are not adequately addressed, or if inappropriate treatment leads to increased feelings of hopelessness or despair. Some antidepressant treatments can uncommonly result in increased suicidality.
  7. Medication side effects and withdrawal symptoms: Incorrect medication management can lead to physical and psychological side effects, as well as withdrawal symptoms if a medication is abruptly discontinued.

The above is not an exhaustive list.

Time lags to discovery

Common to both disciplines

  1. Reporting delays: Healthcare professionals may hesitate to report errors due to fear of legal repercussions, professional embarrassment, or a culture that does not encourage transparency and open discussion of mistakes.
  2. Investigation time: Once an error is reported, it can take time to conduct a thorough investigation. This process involves reviewing medical records, interviewing involved personnel, and sometimes seeking expert opinions.
  3. Regulatory processes: The processes involved in regulatory systems can be time-consuming. Actions such as license suspensions, revocations, or other disciplinary actions typically involve legal proceedings, which can take considerable time.

More surgery-specific

  1. Delayed manifestation of complications: Some surgical complications may not become apparent immediately after the procedure. For instance, postoperative infections, formation of fistulas, or development of adhesions can take days, weeks, or even months to manifest.
  2. Patient awareness and reporting: Patients themselves may not immediately realise that they have been victims of surgical malpractice. It may take time for them to connect their postoperative complications or health issues with potential errors during surgery. Furthermore, the process of complaining can be effortful. Filing a malpractice claim in the courts can be costly, lengthy and complex.

These factors contribute to the time lag between the occurrence of surgical errors or malpractice and their discovery by employers and regulatory systems. This delay can have significant implications for patient safety and quality of care, as it may allow for continued practice by surgeons who have a history of errors or malpractice.

More psychiatric-specific

  1. Subjectivity of symptoms: Unlike many physical symptoms, psychological symptoms are often subjective and can vary greatly from person to person. This can make it difficult to definitively attribute changes in a patient’s mental state to a specific cause, such as a psychiatrist’s actions.
  2. Difficulty in establishing causality: It can be challenging to establish a direct causal link between a psychiatrist’s actions and a patient’s psychological harm. Mental health is influenced by a wide range of factors, including biological, psychological, and environmental factors, and it can be difficult to isolate the impact of a single factor.
  3. Patient awareness and reporting: Patients may have difficulty recognising that they have been harmed by psychiatric malpractice. Over-medication via polypharmacy for example may leave patients impaired in making self-evaluations.  The stigma associated with mental health issues can also deter patients from reporting their experiences.

Regulatory gaps

Institutional regulation

Both the CQC (in England) and the RQIA (in Northern Ireland) play a crucial role in maintaining the quality of health and social care services. Their focus is primarily on the service level rather than the individual practitioner level. This means that they will be unlikely to identify issues related to the performance of individual practitioners unless these issues are impacting the overall quality of the service.

Professional regulation

The General Medical Council (GMC) in the UK does have mechanisms in place to assess the performance of doctors, but these are typically activated in response to concerns about a doctor’s practice rather than being used proactively to evaluate all doctors. One of the key mechanisms is the performance assessment, which provides an independent opinion of a doctor’s professional performance. This is conducted by a team of GMC-trained independent assessors, but it is typically initiated in response to concerns about a doctor’s performance.

The GMC also has a proactive quality assurance process, but this is focused on medical schools, postgraduate training organisations, and colleges to ensure they are meeting the GMC’s standards, rather than on individual doctors. Furthermore, the GMC oversees the revalidation process, which requires every licensed doctor who practices medicine to periodically demonstrate that they are up to date and fit to practice. This process is based on a local, employer-led system of appraisal, which is a form of proactive evaluation. However, it is not a random selection process and is required of all practicing doctors.

In summary, while the GMC does have mechanisms to assess the performance of doctors, these are typically used in response to concerns or as part of the revalidation process, rather than as a proactive or random evaluation of individual doctor performance.

What it means

The Care Quality Commission (CQC) in England and the Regulation and Quality Improvement Authority (RQIA) in Northern Ireland primarily function as inspectorates of health service performance. They assess the quality and safety of care provided by health and social care services as a whole, rather than focusing on the performance of individual practitioners.

The General Medical Council (GMC), on the other hand, is a regulatory body that maintains the official register of medical practitioners within the United Kingdom. Its role is to ensure that standards for medical practice and education are met. While it does have mechanisms to assess the performance of individual doctors, these are typically activated in response to specific concerns or complaints, rather than being used proactively to inspect all doctors, even by random selection.

So, while the GMC does have a role in overseeing individual doctor performance, it is not an inspectorate in the same sense as the CQC or RQIA. Its primary function is to set and uphold standards, and it typically becomes involved in individual doctor performance issues when there are concerns about a doctor’s ability to meet these standards.

Therefore, none of the main regulatory bodies assess individual doctor – psychiatrist or surgeon performance – proactively or in real-time. This contributes to significant time-lags in picking up poor performance.

Costs arising from malpractice

Exact cost figures for any sort of medical malpractice across the medical profession are hard to come by. What is known is that litigated and non-litigated costs are rising steeply in the last 10 years or so.

My search of internet sources brought up the following (references to follow below):

Litigated

While exact figures are not provided, several sources indicate that the costs of litigation for medical malpractice in the UK have been increasing over time:

  1. The House of Lords Library report indicates that claimant legal costs decreased from £497.5 million to £448.1 million, but it does not specify the time frame for this change.
  2. An article in the British Medical Journal (BMJ) discusses the rising costs of clinical negligence claims to the NHS and health services, advocating for legal reforms to control these costs.
  3. A report by the Medical Protection Society titled “The Rising Cost of Clinical Negligence: Who Pays the Price?” urgently advocates for a package of legal reforms to control the spiralling costs of clinical negligence claims to the NHS and health services.
  4. An analysis of the claims database published in the journal PMC shows that the rate of litigation increased from 0.46 to 0.81 closed claims per 1000 finished consultant episodes between 1990 and 1998.
  5. A report by NHS Resolution highlights the concern around rising costs of clinical negligence, even though the number of claims is falling as a proportion of the number of treatment episodes.
  6. A report by Lockton indicates that the overall cost of claims increased by more than four times between certain years.

Non-litigated

  1. The ‘annual cost of harm’ for claims arising under the Clinical Negligence Scheme for Trusts (CNST) scheme was £13.3 billion according to the NHS Resolution’s annual report for 2021/22.
  2. Total payments made to settle claims in 2020/21 was £2.26 billion as per a report by the House of Lords Library.
  3. From 2020-21, there were 12,629 new clinical claims made against the NHS and over £2.2 billion was paid out in medical negligence compensation according to Pearson Solicitors and Financial Advisers.
  4. The overall cost of clinical negligence in England rose from £582 million in 2006 to 2007 to £2.2 billion in 2020 to 2021.

Sources

  1. Pearson Solicitors – Sept 2022
  2. House of Lords Library report – 2021
  3. Lockton report – circa 2021 looking back.
  4. NHS Resolution report – 2019
  5. British Medical Journal (BMJ) article – 2020
  6. Medical Protection Society report – 2017
  7. Analysis of the claims database published in the journal PMC – 2000 – dated report.

The future

The above comparisons and evaluations lead me to wonder if more proactive or real-time evaluation of individual surgeon or psychiatrist may reduce time lags for discovery of errors or malpractice?

I now think that proactive or real-time evaluation of individual healthcare practitioners, including surgeons and psychiatrists, could potentially reduce the time lag for the discovery of errors or malpractice. Here’s how:

  1. Early detection of errors: Real-time evaluation could help identify errors as they occur, allowing for immediate intervention and correction. This could prevent the error from causing harm or escalating into a more serious issue.
  2. Continuous feedback and improvement: Regular evaluation provides opportunities for continuous feedback, which can help healthcare practitioners improve their skills and performance on an ongoing basis. This could lead to a reduction in errors over time.
  3. Identification of patterns: Proactive evaluation could help identify patterns of errors or suboptimal performance, which might not be evident in isolated incidents. This could lead to targeted interventions to address specific issues.
  4. Promotion of accountability: Knowing that their performance is being monitored and evaluated could encourage healthcare practitioners to adhere more closely to best practice guidelines and standards, potentially reducing errors.
  5. Enhanced patient safety: Ultimately, proactive and real-time evaluation could enhance patient safety by ensuring that errors are identified and addressed promptly.

Implementing such changes would come with its own challenges, including concerns about privacy, the potential for increased stress and pressure among healthcare practitioners, and the need for resources to manage and analyse the data collected. It would be crucial to balance these considerations with the potential benefits to patient safety and care quality.

I further think that cost and effort of implementing such changes would be well balanced by reduced malpractice claims, stress, time-wasting for investigations, and most of all reduced harm to patients. While implementing such changes would require an initial investment, the potential long-term benefits could make it a cost-effective strategy. I have no figures to back up my estimates. Someone in power needs to look into this further.

Final reflections

This exploration began with a comparison of errors in surgical and psychiatric practices. In surgery, errors are often tangible and identifiable through various diagnostic tests, including technical mistakes during the operation, incorrect surgical procedures, or post-operative complications.

In contrast, errors in psychiatric practice are often elusive due to the subjective nature of mental health. These errors can include misdiagnosis, inappropriate use of medication, or ineffective therapeutic interventions. The impact of these errors is often psychological, manifesting as worsening of symptoms, development of new symptoms, or reduced quality of life.

I considered the time lag in identifying errors in both fields. In surgery, this can be due to factors such as delayed manifestation of complications, reporting delays, investigation time, regulatory processes, and patient awareness and reporting. In psychiatry, the time lag can be even longer due to factors such as the subjectivity of symptoms, delayed manifestation of harm, difficulty in establishing causality, underreporting of errors, patient awareness and reporting, and investigation time.

The roles of the Care Quality Commission (CQC), the Regulation and Quality Improvement Authority (RQIA), and the General Medical Council (GMC) were also explored. The CQC and RQIA primarily function as inspectorates of health service performance, while the GMC is a regulatory body that maintains the official register of medical practitioners within the UK. The GMC has mechanisms to assess the performance of individual doctors, but these are typically activated in response to specific concerns or complaints, rather than being used proactively to inspect all doctors.

The costs of litigated and non-litigated costs of malpractice in the UK – whilst difficult to estimate accurately – are rising steeply in the last 10 years. Existing frameworks and systems to catch or prevent malpractice related costs evidently are not working well. I infer that both surgical and psychiatric malpractice are swimming in an ocean of systemic factors affecting UK health services. The evidence for all that, is the topic of a separate exploration, but it is easy to find that management systems and chronic understaffing are significant contributing factors (among many others). Radical change is needed in how the NHS operates its business.

The potential benefits of implementing proactive or real-time evaluation of individual healthcare practitioners were explored. If implemented the benefits could include early detection of errors, continuous feedback and improvement, identification of patterns, promotion of accountability, and enhanced patient safety. While implementing such changes would foreseeably incur new costs, the potential long-term benefits could make for a cost-effective strategy. In other words the costs of implementing new systems and structures could eventually lead to big cost savings. I’m not equipped to carry out such analysis of cost savings, so I am only relying on my common sense.


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