Lung & mediastinum
Clinical negligence in thoracic surgery
Breach of duty and causation in surgery of the lungs, pleura, chest wall, mediastinum and diaphragm. I operate weekly, which means my view of what a reasonable body of thoracic surgeons would have done is drawn from current practice rather than from how the operation was performed when I trained.
Claims that commonly arise
Where these cases usually start
Whether the risks of thoracic surgery were adequately explained, whether reasonable alternatives were discussed, and whether the discussion met the standard set in Montgomery. In thoracic surgery this most often concerns the risk of prolonged air leak, the possibility of conversion from a minimally invasive approach to thoracotomy, the prospect of a more extensive resection than planned, and long-term post-thoracotomy pain.
Whether the patient was fit for the resection performed, whether lung function and cardiac assessment were adequate, whether a lesser resection was indicated, and whether the multidisciplinary team discussion supported the operation that was carried out.
Intraoperative injury to adjacent structures, including the phrenic, recurrent laryngeal and vagus nerves, the great vessels, the oesophagus and the thoracic duct. Adequacy of resection margins. Staple line failure. Decisions to convert or not to convert.
Whether the findings at operation should have prompted a different course, and whether the decision taken fell within the range of reasonable surgical judgement.
The commonest category. Bleeding, prolonged air leak, bronchopleural fistula, empyema, lobar torsion, chylothorax, and post-operative respiratory failure. The question in these cases is rarely whether the complication occurred — most are recognised risks — but whether it was recognised and acted on within a reasonable time.
Whether deterioration was identified, whether investigations were requested and reviewed, and whether escalation to the surgical team or to critical care happened when it should have.
Failure to act on post-operative imaging, failure to arrange surveillance after resection, and loss to follow-up.
What usually decides these cases
Three things, in my experience
01
Timing Almost every post-operative complication is a recognised risk. What is defensible in the first six hours is often indefensible at twenty-four. Establishing when the abnormal signs first appeared, and what a reasonable surgeon would have done at that point, is where most of the work lies.02
The counterfactual operation Causation frequently depends on what the outcome would have been had the correct step been taken. Whether an earlier return to theatre would have avoided the outcome, whether a lesser resection was feasible, whether a different approach would have preserved function — these are surgical questions and they need a surgeon who still does the operation to answer them.03
The record Operation notes in thoracic surgery are often brief. Reconstructing what actually happened requires the anaesthetic chart, the recovery observations, the drain output records and the imaging alongside the operation note. Cases are frequently lost or won on material that was not requested at the outset.What I can advise on
Scope of opinion
Scope of instruction
What I will need and where the boundary sits
What I will need
Records- Full hospital records including nursing notes, observation and early warning score charts
- Drain charts and drug charts
- The operation note and anaesthetic chart
- All imaging, as images and not only as reports
- The MDT record where one exists
- The consent form and any clinic letters preceding it
- The pathology
Where the boundary sits
Outside my expertise- Cardiac surgery
- The medical management of respiratory disease
- The interpretation of imaging as a radiological question
- Oncological treatment decisions
Several thoracic claims need one of those opinions alongside mine, and I will tell you which on the merits call.
Discuss a case
Fifteen minutes on the telephone, free of charge. I will tell you whether the issues fall within my expertise before anything is committed to paper.
Discuss a case