This article explores litigation trends already appearing in plastic surgery as a result of COVID-19, highlighting the type of clinical negligence issues already being brought against healthcare providers.
Plastic Surgery and COVID-19
Plastic surgeons have highlighted the following areas as being contributory to litigation risks developing:
Before COVID-19, long waiting lists for plastic surgery for non-urgent cases were not unheard of, with clinic appointments taking place anywhere between 1-12 weeks from referral and from thereon, up to 6 months waiting for the operation itself.
Clinicians working throughout COVID-19 have explained however that these timescales have worsened dramatically. Since the pandemic began, it has been reported that waiting times have grown exponentially, with some non-urgent operations even having no likelihood of taking place at all in the foreseeable future as a result. In some instances, it has been reported that specialist clinic appointments are now up to a 12 month wait, with operative waiting lists ranging anywhere between 1 and 2 years. Without any doubt, the pandemic has had a detrimental effect on the ability to keep patient waiting times down.
Perhaps adding to the issue is the fact that clinicians and their families have themselves contracted the virus, resulting in them needed to self-isolate due to virus concerns. This, in turn, has often affected multiple members of any particular staff team, causing disruption to the working timetables. Due to a lack of hospital staff on duty, those that remain are spread out amongst patients and this is one of the reasons contributing to the decision by some hospitals to temporarily close specialist services, leading to referring patients en-masse to general departments.
It has been reported that the current systems in place for prioritisation used by NHS hospitals (headed by The Royal College of Surgeons & The Federation of Surgical Specialty Associations) only take into account the level of urgency, rather the potential value of the procedure for the patient. Prioritisations using this method can mean that urgent but relatively ‘futile’ operations will always go ahead, however, those of less urgency but with a higher level of value (such as operations on children) are much less likely to take place, even if the long-term benefits far outweigh those for the urgent but futile case.
Whilst this system has been used in the past, especially during busy weekends, it is not intended for long term, continued use, like it has been during the pandemic. It is due to this type of process that systemised discrimination is being reported, suggesting that certain patient groups, such as children, cannot be prioritised, as illustrated above. In these circumstances, clinicians can be restricted to treating specific patients that fit into the guidelines on urgency.
By interviewing professionals on the front line, and analysing cases already being brought against healthcare providers, THEMIS has identified the following litigation risks already developing:
1. Delays in treatment
One of the main allegations found in recent COVID-19 legal cases surround timing issues – specifically delays. As discussed above, timing delays have caused many patients to be left untreated, with some already pursuing litigation for pain and continuous delays suffered during the pandemic. The healthcare sector has faced unprecedented times over the last year and has had to adapt practices to suit the current situation and unfortunately, this has meant that many patients have experienced delays in care that cannot be prevented.
THEMIS has analysed data from specific cases that have already arisen as a result of COVID-19, compiling some recommendations to try and limit the litigation risk facing plastic surgeons during this healthcare crisis. Whilst these are just suggestions, considering the information compiled from COVID-19 legal cases, THEMIS believe that they can assist in reducing and potentially preventing litigious risk.
1) In an attempt to reduce litigation risk arising out of timing delays, THEMIS recommends that Clinicians should make patients fully aware of the potential timing issues that may affect them, keeping the patients informed at all times where possible. This explanation will be vital to help patients better understand why treatment is being delayed, especially if the care is being reviewed in the context of litigation.
2) As COVID-19 cases begin to fall, clinicians should remain aware insofar as possible of those patients who have been awaiting consultations or surgery during the pandemic will start to expect contact and treatment. THEMIS recommends that when preparing to organise seeing these patients, the length of time they have been waiting for treatment should be considered and factored into the timetabling process. This can help prevent injuries developing further and can limit the risk of long-term litigation risk.
As explained above, prioritisation regulations have been directly affected by the pandemic, with clinicians having reduced say on which patients can be treated, even if the benefits of the less urgent operation are significantly higher than that of a more urgent but futile operation. Children especially can be disproportionately segregated by these regulations as they do not take into account life expectancy or even long-term benefits when calculating priority cases.
When taking into account the issues posed by prioritisation during the pandemic, it is clear that this poses litigation risk to clinicians practicing in this field.
We have analysed specific COVID-19 cases that have arisen as a result of the pandemic, which draw attention to patients alleging they are being ‘overlooked’ by their clinicians and have been on waiting lists for an unreasonable amount of time, if at all. One particular case alleged that the patient’s planned operation was cancelled due to the pandemic and no follow up has been scheduled, leading to prolonged pain and suffering.
To try and reduce the risk of litigation, THEMIS recommends trying to prioritise patients as best as possible given the circumstances and raising specific, less urgent but very worthwhile cases to the hospital boards if necessary, so that the patient has the best chance of the operation occurring. Although in these climates, it is appreciated clinicians do not have full control over prioritisations, they should push for operations to go ahead where they can, whilst keeping the patients fully informed of the efforts, to reduce litigation risk.
Where necessary, clinicians should think about referring minors to the paediatric department if possible, to try and achieve the best outcome as this can reduce the number of patients on the ward at any one time and can allow children to be seen by clinicians, whilst also sticking to the prioritisation system currently in place.
- Keeping patients fully informed of the situation can also help to reduce litigation risk. THEMIS have analysed specific COVID-19 cases and by examining the trends shared by these cases, there is certainly a lesser chance of litigation occurring where patients feel listened to and respected. This should not be overlooked.
This article has demonstrated how Plastic Surgery care has developed as a result of the COVID-19 pandemic, most notably by asking plastic surgeons to ‘prioritise’ patients on strict guidelines, perhaps causing another kind of crisis once the COVID-19 pandemic has resolved.
However, an unseen benefit may also arise out of these delays and prioritisation systems, by allowing critical patients to get the care needed, by preventing patients with minor issues from ‘clogging’ up the system. This article demonstrates that litigation risks are also evidently evolving and may continue to do so along with COVID-19.