Abstract
Purpose
Medicolegal factors contribute to increasing healthcare costs through the direct costs of malpractice litigation, malpractice insurance premiums, and defensive medicine. Malpractice litigation trends are constantly changing as a result of technological innovations and changes in laws. In this study, we examine the most recent legal decisions related to Otolaryngology and characterize the factors responsible for determining legal responsibility.
Methods
The Westlaw legal database (Thomson Reuters, New York, NY) was used to search for jury verdicts since 2008 in Otolaryngology malpractice cases. The 44 cases included in this analysis were studied to determine the procedures most commonly litigated and progressing to trial, as well as the year, location, alleged cause of malpractice, specialty of co-defendants, and case outcomes.
Results
Out of the 44 cases included in this analysis, physicians were not found liable in 36 (81.8%) cases. Rhinologic procedures comprised 38.6% of cases litigated, and rulings were in physicians’ favor in 66.7% of endoscopic sinus surgery (ESS) cases and all non-ESS rhinologic cases. A perceived lack of informed consent was noted in 34.1% of cases. The 8 jury awards averaged $940,000 (range, $148,000–$3,600,000).
Conclusion
Otolaryngologists were not found liable in the majority of cases reviewed. Rhinologic surgeries were the most common procedures resulting in litigation. Adenotonsillectomies, thyroidectomies, and airway management are also well-represented. Perceived deficits in informed consent and misdiagnosis were noted in a considerable proportion of otolaryngologic malpractice cases resulting in jury decisions.
1
Introduction
The landmark Institute of Medicine report from 2000, To Err Is Human: Building a Safer Health System , reported that medical errors in the United States (US) may be responsible for nearly $30 billion in avoidable healthcare costs annually . Medical errors often perpetuate malpractice litigation, which contributes considerably to the recent rise in healthcare expenditures and may cost US healthcare providers up to $10 billion annually . Although malpractice premium rates may be plateauing, costs of malpractice premiums still are passed down to health consumers . A 2011 survey reported the mean annual malpractice insurance premium for all specialties was $24,500, with nearly 8% reporting premiums greater than $50,000 . State laws drive malpractice premiums, delineating limits (or a lack thereof) in the amount of damages patients can recover, as well as the amount of coverage physicians need to carry . As a surgical specialty, Otolaryngologists are above average on this spectrum, averaging $28,038 in malpractice premiums annually .
Specific procedures and conditions relevant to Otolaryngology have been previously examined with regards to malpractice outcomes and medicolegal implications . A 2004 examination of litigation related to endoscopic sinus surgery (ESS) showed a relationship between severity of complications sustained and case outcome . Complications noted in these cases included cerebrospinal fluid (CSF) leaks, meningitis, and vision deficits, all well known risks of ESS. Another review of sinonasal disease cases found similar complications and also stressed the importance of documentation of informed consent .
Analyses have been conducted for head and neck oncology and otology . A recent analysis focusing on malpractice claims before 2007 related to head and neck surgery identified younger patient age, the occurrence of perioperative complications, disease recurrence, and misdiagnosis as the most important factors in malpractice litigation .
Although there has been analysis of litigation related to specific areas within Otolaryngology, there has been no comprehensive examination looking at the overall composition of cases within the field, as well as which cases progress to trial. One recent analysis of medical malpractice outcomes found that as little as 15% of cases may progress to trial . Another widely-cited study evaluating New York City hospitals concluded that the probability of out of court settlement has little association with the strength of a malpractice claim, although other analyses have disputed this conclusion . While information concerning which procedures are most commonly litigated may be well known to malpractice insurers, there have been no examinations in the peer-reviewed literature of the characteristics of these cases and factors in determining legal responsibility. Additionally, although some of these analyses examining specific procedures looked at cases spanning several decades, trends in malpractice litigation are dynamic as a result of technological innovations and changes in the law. Our objective was to examine the most recent trial decisions in Otolaryngology, using decisions that have occurred since 2008, to determine which procedures are most commonly litigated in the current environment, and, more importantly, to analyze the factors determining outcomes in these cases.
2
Materials and methods
The Westlaw legal database (Thomson Reuters, New York, NY) was used to search for jury verdicts related to Otolaryngology malpractice litigation from 2008 to the present. The search term combination “Medical Malpractice-Otolaryngologist” yielded the highest number of relevant cases. Out of 135 jury verdicts and settlements since January 1, 2008, cases that were not medical malpractice (26), not Otolaryngology-related (39), duplicate (13), and were resolved through out of court settlement (13) were excluded, leaving 44 remaining cases that progressed to trial ( Fig. 1 ).
Available information regarding year, location, procedure/condition resulting in litigation, alleged cause of malpractice, other complications, specialty of co-defendants, case outcome, and expert witness specialties were collected in August 2012.
2
Materials and methods
The Westlaw legal database (Thomson Reuters, New York, NY) was used to search for jury verdicts related to Otolaryngology malpractice litigation from 2008 to the present. The search term combination “Medical Malpractice-Otolaryngologist” yielded the highest number of relevant cases. Out of 135 jury verdicts and settlements since January 1, 2008, cases that were not medical malpractice (26), not Otolaryngology-related (39), duplicate (13), and were resolved through out of court settlement (13) were excluded, leaving 44 remaining cases that progressed to trial ( Fig. 1 ).
Available information regarding year, location, procedure/condition resulting in litigation, alleged cause of malpractice, other complications, specialty of co-defendants, case outcome, and expert witness specialties were collected in August 2012.
3
Results
Out of the initial 135 search results for Otolaryngology malpractice claims since 2008, 91 cases were excluded. It is important to stress the heterogenous nature of the information available in these court records: level of detail varied considerably not only among jurisdiction, but by type of case. Alleged causes of malpractice varied considerably even within some procedures ( Table 1 ), such as adenotonsillectomies and thyroidectomies. Trends were observed within other procedures; for example, out of the 9 ESS cases, 3 involved eye injury, 3 involved CSF leak, and 2 cases involved meningitis ( Table 1 ). Interestingly, there was only 1 rhinologic case that mentioned use of intraoperative stereotactic CT guidance.
| Adenotonsillectomy |
| Removal of excessive palatal issue causing VPI |
| Proceeded with surgery after epinephrine administration caused unsafe heart rate and Blood Pressure, causing SVT and Cardiac arrest |
| Post-operative dehydration, nasal septal perforation (from bilateral nasal electrocautery) |
| Dislodgement of endotracheal tube, asphyxia |
| Misdiagnosis of nasopharyngeal stenosis as OSA, resulting in performance of septoplasty, turbinoplasty, adenotonsillectomy, tongue wedge base reduction. Tracheotomy needed as result of incorrect surgery |
| Post-operative pneumonia, respiratory arrest, and death |
| Carotid Tumor Removal |
| Cerebrovascular Accident (2) |
| Deep Cervical Lymph Node Excisional Biopsy |
| Hoarseness and vocal cord damage |
| Ear Surgery |
| Stapedectomy — Facial Paralysis, Loss of depth perception Left Eye |
| Application of gentian violet during surgery — Tymp. Membrane perforation |
| TM Perforation |
| Acoustic Neuroma — Lumbar punctures to check for post-operative meningitis may have caused paraplegia |
| Failure to Properly Treat Sinus Infection |
| Physician opted for conservative treatment with antibiotic, patient ultimately ended up dying from complications of sinusitis |
| Failure to diagnose cancer |
| Nasopharyngeal cancer |
| Thyroid Cancer |
| Squamous cell carcinoma — misdiagnosed tongue mass as hemangioma |
| Failure to diagnose |
| Cholesteatoma — delay in care may have led to hearing loss |
| Functional Endoscopic Sinus Surgery |
| Misplaced maxillary antrostomy, did not perform agreed upon procedure (2) |
| Lamina papyracea penetrated, medial rectus injury, diplopia |
| CSF Leak, meningitis, pneumocephalus, frontal lobe injury |
| CSF leak, meningitis, memory loss |
| Gauze inserted tightly into sinus cavity caused nerve damage and blindness |
| Brain hemorrhage from internal carotid artery penetration |
| Brain hemorrhage, CSF leak, failure to call neurosurgeon in timely manner |
| Failure to diagnose nasopharyngeal carcinoma, incorrect CT interpretation |
| Glossectomy and Neck Dissection |
| New tumors in spine and lungs year after; failure to refer to medical oncologist |
| Laryngectomy |
| Anosmia, dysgeusia, iatrogenic tracheoesophageal fistula |
| Failed to recognize lower extremity vascular insufficiency post-operatively, resulted in bilateral BKA |
| Nasal Surgery (non-FESS) |
| Rhinoplasty — Broken osteome left behind metal fragments causing disfigurement, discomfort, redness |
| Septoplasty — Burns on nostril and gums |
| Septoplasty — Severing of internal maxillary artery, repeated hemorrhage and transfusions needed. |
| Septoplasty and UPP — Neurologic Injuries and MI post-operatively |
| SMR Turbinates — Post-operative CVA |
| SMR Turbinates — Post-operative CVA, L frontal lobe injury |
| Presented to ED w/ Respiratory Distress |
| Trachea was being compressed by thyroid; litigation against physicians and hospital for failure to intubate in a timely manner, contributing to patient’s death. |
| Thyroidectomy |
| Failure to remove malignancy |
| Unnecessary Procedure |
| Improperly removed endotracheal tube from patient experiencing post-operative bleed, resulting in anoxia, brain injury, persistent vegetative state |
| Misdiagnosis of thyroid cancer, unnecessary procedure |
| Left recurrent laryngeal nerve injury causing vocal cord dysfunction |
| Tracheotomy |
| Bedside Tracheotomy — hemorrhage, causing death |
| Uvulopalatopharyngoplasty |
| Medication overdose after post-operative discharge, causing death |
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