The cost of consent: why healthcare providers must be compliant with the Montgomery principles.

The cost of clinical negligence in the UK has continued to rise despite no increase in claims numbers from 2016 to 2019. In the US, medical malpractice claim rates have fallen each year since 2001 and the payout rate has stabilized. In Germany, malpractice claim rates for spinal surgery fell yearly from 2012 to 2017, despite the number of spinal operations increasing. In Australia, public healthcare claim rates were largely static from 2008 to 2013, but private claims rose marginally. The cost of claims rose during the period. UK and Australian trends are therefore out of alignment with other international comparisons. Many of the claims in orthopaedics occur as a result of "failure to warn", i.e. lack of adequately documented and appropriate consent. The UK and USA have similar rates (26% and 24% respectively), but in Germany the rate is 14% and in Australia only 2%. This paper considers the drivers for the increased cost of clinical negligence claims in the UK compared to the USA, Germany and Australia, from a spinal and orthopaedic point of view, with a focus on "failure to warn" and lack of compliance with the principles established in February 2015 in the Supreme Court in the case of Montgomery v Lanarkshire Health Board. The article provides a description of the prevailing medicolegal situation in the UK and also calculates, from publicly available data, the cost to the public purse of the failure to comply with the principles established. It shows that compliance with the Montgomery principles would have an immediate and lasting positive impact on the sums paid by NHS Resolution to settle negligence cases in a way that has already been established in the USA. Cite this article: Bone Joint J 2020;102-B(5):550-555.

Causes and outcomes of cauda equina syndrome in medico-legal practice: a single neurosurgical experience of 40 consecutive cases.

BACKGROUND: This is a unique report of 40 patients litigating in relation to the management of a cauda equina syndrome (CES), with prospective data collection. METHODS: Patients were seen and examined; medical records and radiological imaging were reviewed. The following data were collected prospectively: age; sex; the level of cauda equina (CE) compression; the pathology causing the compression; the clinical picture at first presentation; the causes of any iatrogenic injury; possible breaches of duty of care and the responsible discipline; recovery of bladder control; return to work. FINDINGS: There were possible breaches of duty of care for 39 patients initially, and for 69 patients overall. Twenty-eight patients presented with compressive degenerative pathologies (mainly central disc prolapses); all 28 had deteriorated to the point of bladder paralysis (complete CES (CESR)) at the time of treatment. Twenty-six (93%) had voluntary bladder control at presentation. Long-term bladder paralysis was probably avoidable in over 90% of patients. Eleven patients had iatrogenic injuries: all had long-term bladder paralysis. Thirty-four patients had bladder paralysis (CESR) at the point of decompressive surgery. Recovery of bladder function occurred in only seven patients (21%), i.e. long-term bladder outcomes were poor. Only 22% of patients returned to work. CONCLUSION: In this highly selected group of patients whose CES was not managed in an appropriate/standard fashion, 93% of patients had long-term bladder, bowel and sexual dysfunction that was probably avoidable. Mismanagement of patients with iatrogenic injuries was associated with a universally poor outcome.

For debate - guidelines for the management of suspected cauda equina syndrome.

A logical, rational and reasonable guideline for the management of patients with suspected cauda equina syndrome (CESS) is proposed. This article is intended to promote debate. Ideally spinal surgeons can agree a standard of care that can be applied nationally to the benefit of our patients, our colleagues and, as neurosurgeons and spinal surgeons, ourselves.