Medical Negligence

Senior Litigation Executive believes anaesthesiology fraud damages trust in both medicine and the law.

November 3, 2022
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Written by Alison Flaherty, Partner & Head of Clinical Negligence

The Guardian recently published an article highlighting new findings that questioned advice to administer 80% oxygen to patients after operations.

The article, which studied the World Health Organisation’s 2016 guidelines, presented arguments from a number of leading anaesthetist’s that patients may actually have been put at serious harm because of ‘flawed advice’ to administer highly concentrated oxygen after surgery.

Ciaran Harper, Solicitor and Senior Litigation Executive in the Medical Negligence department at Fletchers Solicitors, believes any anaesthesiology fraud ultimately damages trust in both medical professionals and the law.

Ciaran said:

 “The recommendations were controversial, because there were a number of conflicting studies, with some indicating that additional oxygen actually increased the risk of infection”

One of those to challenge the anaesthesiology guidelines was Paul Myles, Director of Anaesthesia and Perioperative Medicine at Alfred Hospital in Melbourne.

Myles looked into the initial guidelines that were born from 40 papers published by Mario Schietroma, an academic based at the University of L’Aquila in Italy.

He found a number of errors including bad calculations and subject data which looked suspiciously similar between studies with advice to briefly administer oxygen at an 80% saturation rate to prevent infection of surgical sites after an operation.

The rationale for the argument was that higher oxygen levels increased the activity of neutrophils, part of the body’s defence system.

 Ciaran continued:

“He wasn’t able to prove any falsification, however, because the original data sets were no longer available to check – Schietroma said that they had been destroyed in an earthquake.”

Ciaran acknowledged that the implications of the data loss are enormous.

The WHO provides essential advice on healthcare to doctors and other healthcare professionals across the world and has to calibrate its recommendations to be useful in every circumstance – from the most high-tech hospital to the most poverty-stricken refugee camp. 

Ciaran said:

“Its recommendations are supposed to be reliable; from the perspective of a medical negligence lawyer, the standard we look for is “what would a reasonably competent body of medical professionals do?” 

“One thing that they might do is to look at WHO guidelines for advice.  If the guidelines aren’t correct, then that doctor would (unwittingly) give incorrect treatment. 

“The difficulty legally speaking is that such a doctor probably wouldn’t be found to be negligent – he’d be able to justify his actions by referring to the guidelines. The standard we look for, then, is completely up in the air.”

Legal accountability to one side, Ciaran explains that perhaps the more insidious problem is the doubt that this throws on the whole profession and the fact this is not the first time that anaesthesiology has had this issue.

In 2012, a Japanese researcher, Fujii Yoshitaka, had to retract 120 papers because he had falsified data. 

Ciaran said:

“In this sort of circumstance, it would be understandable if a patient lost faith in what they were told by their doctor. 

“That, in turn, could cause practical problems for treatment.  The NHS is ever-more pushed for time when treating patients, and doctors simply do not have the time to give a full academic justification to their patients for every treatment given. 

“At some point, patients need to take things on faith, and this sort of academic misconduct pushes that point further back.”

In conclusion, Ciaran also foresees additional obstacles for lawyers.

Proving negligence could become harder in an environment where lawyers rely on referring to a set standard.

Ciaran concluded:

“Without that standard, patients who have been mistreated by their doctors could go without the appropriate compensation.

“So while we have every sympathy for the “publish or perish” culture which academics work in, this sort of allegedly unethical misrepresentation in papers is damaging to the research culture of academics, practical patient care and the legal system for those patients who need redress.”

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