Litigation costs of wrong-site surgery and other non-technical errors in orthopaedic operating theatres

This study reviews the litigation costs of avoidable errors in orthopaedic operating theatres (OOTs) in England and Wales from 1995 to 2010 using the National Health Service Litigation Authority Database.

Litigation specifically against non-technical errors (NTEs) in OOTs and issues regarding obtaining adequate consent was identified and analysed for the year of incident, compensation fee, cost of legal defence, and likelihood of compensation.

There were 550 claims relating to consent and NTEs in OOTs. Negligence was related to consent (n=126), wrong-site surgery (104), injuries in the OOT (54), foreign body left in situ (54), diathermy and skin-preparation burns (54), operator error (40), incorrect equipment (25), medication errors (15) and tourniquet injuries (10). Mean cost per claim was £40,322. Cumulative cost for all cases was £20 million. Wrong-site surgery was error that elicited the most successful litigation (89% of cases). Litigation relating to implantation of an incorrect prosthesis (eg right-sided prosthesis in a left knee) cost £2.9 million. Prevalence of litigation against NTEs has declined since 2007.

Improved patient-safety strategies such as the World Health Organization Surgical Checklist may be responsible for the recent reduction in prevalence of litigation for NTEs. However, addition of a specific feature in orthopaedic surgery, an 'implant time-out' could translate into a cost benefit for National Health Service hospital trusts and improve patient safety.