Uncovering Malpractice in Appendectomies: a Review of 234 Cases

Background

General surgery is a “high-risk specialty” with respect to medical malpractice rates, and appendicitis is one of the most common diagnoses encountered by practitioners. Our objectives were to detail issues affecting malpractice litigation regarding appendicitis and appendectomies, including outcomes, awards, alleged causes of malpractice, and other factors instrumental in determining legal responsibility and increasing patient safety.

Study Design

Publically available federal and state court records were examined for pertinent jury verdict and settlement reports. Information from 234 pertinent cases was collected, including alleged causes of malpractice and outcomes.

Results

Of the 234 cases included in this study, the most common factor noted was an alleged delay in diagnosis (67.1 %), followed by intraoperative negligence (16.2 %). Alleged deficits in informed consent, although only specifically cited as a cause of malpractice in 1.3 % of cases, were found to be an important aspect of many cases. In total, 59.8 % of cases were ruled in favor of the physician, 23.7 % in favor of the plaintiff, and 5.5 % reached a settlement. The average plaintiff award was US$794,152, and the average settlement award was US$1,434,286.

Conclusion

An important strategy to decrease liability in a physician's practice is prompt evaluation of an appendicitis patient. An integral part of this is efficient communication between physicians practicing a wide variety of specialties, especially including practitioners in emergency medicine and general surgery. Additionally, completing a thorough informed consent explaining all aspects of the procedure including the factors we outline will not only increase patient awareness of potential risks but also protect the physician in the face of litigation.     

Sexual dysfunction damages: A legal database review

IntroductionProcedural specialties are at higher risk for malpractice claims than non-procedural specialties. Previous studies have examined common damages and malpractice lawsuits resulting from specific procedures. Our goal was to analyze urological interventions that led to sexual dysfunction (SD) claims.MethodsThe Casetext legal research platform was queried using search terms for medical malpractice and common men’s health procedures between 1993 and 2020. In total, 236 cases were found, and 21 cases met the inclusion criteria: malpractice cases against a urologist or urology group, clearly stated legal outcome, and allegation of sexual dysfunction from an intervention that directly caused damages.ResultsA total of 42 damages were cited in 21 lawsuits. The top three damages claimed were erectile dysfunction (ED) (14/42, 33.3%), genital pain syndrome (7/42, 16.7%), and urinary incontinence (5/42, 11.9%). The most commonly cited treatments were urinary catheter placement or removal (3/21, 14.3%), robotic-assisted laparoscopic radical prostatectomy (RALP) (3/21, 14.3%), circumcision (3/21, 14.3%), and penile implant (3/21, 14.3%). In 19 of 21 suits (90.4%), the outcome favored the defendant. Two cases favored the plaintiff: penile implant (failure to prove the patient was permanently, organically impotent prior to the procedure; missed urethral injury at time of surgery, $300 000) and vasectomy (damage to vasculature resulting in loss of testicle, $300 000).ConclusionsMost suspected malpractice cases resulting in SD favored the defendant urologist. Interestingly, urinary catheter placement is as likely to result in litigation as other operative interventions, such as RALP, inflatable penile prosthesis, and circumcision. It is possible that thorough preoperative counselling and increased responsiveness to patients’ postoperative concerns may have avoided litigation in several cases.     

Malpractice issues in neurological surgery

BACKGROUND: Malpractice litigation continues to be a serious problem in neurosurgery despite many suggestions to contain liability, including proposed federal legislation. METHODS: A current study of 275 malpractice claims has been compared with a prior study of 300 cases of liability and potential liability reported in 1985. Twenty years later, the results are surprisingly similar. Spinal surgery continues to dominate neurosurgical malpractice claims with 42% of the total, most from lumbar spine operations. As in the previous study, trauma and intracranial surgery account for the next largest groups. Of particular significance in terms of improved diagnostic methodology were spinal operations at the wrong level as well as failure to diagnose sentinel bleeds, aneurysms, arteriovenous malformation, and other cerebral lesions. RESULTS: Although many cases believed defensible were settled often because of significant neurological deficit, a number were dropped or dismissed after review, reports, or depositions, and defense verdicts were achieved in a similar number that went to trial. CONCLUSIONS: Most plaintiff claims that had merit were settled. Although hope continues for tort reform, uniform capitation of noneconomic awards, and contingency fees, it should be noted that 119 claims, more than 40%, were considered either not defensible by defendants or had merit for the plaintiff.     

Medical Malpractice in Nerve Injury of the Upper Extremity

Background: Medical malpractice accounts for more than $55 billion of annual health care costs. Updated malpractice risk to surgeons and physicians related to upper extremity peripheral nerve injury has not been published. Methods: A comprehensive database analysis of upper extremity nerve injury claims between 1995 and 2014 in the United States was conducted using the Medical Professional Liability Association Data Sharing Project, representing 24 major insurance companies. Results: Nerve injury in the upper extremity accounted for 614 (0.3%) malpractice claims (total of 188 323). Common presenting diagnoses included carpal tunnel syndrome (41%), upper extremity fractures (19%), and traumatic nerve injuries to the shoulder or upper limb (8%). Improper performance (49% of total claims) and claims without evidence of medical error (19%) were the most common malpractice suits. Orthopedic surgeons were the most frequently targeted specialists (42%). In all, 65% of nerve injury claims originated from operative procedures in a hospital, 59% of claims were dismissed or withdrawn prior to trial, and 30% resulted in settlements. Thirty-three percent of claims resulted in an indemnity payment to an injured party, with an average payout of $203 592 per successful suit. Only 8% of claims resulted in a completed trial and verdict, and verdicts were overwhelmingly in favor of the defendant (83%). Conclusions: Most malpractice claims from peripheral nerve injuries in the United States arise from the management of common diagnoses, occur in the operating room, and allege improper performance. Strategies to reduce malpractice risk should emphasize the management of common conditions and patient-physician communication.     

Monetary lessons from litigation involving laparoscopic cholecystectomy

Limited information exists on the relationship between adverse events associated with laparoscopic cholecystectomy (LC) and subsequent litigation. Out of 104 suits concerning LC, 18 cases were settled for 628,138 dollars; 48 cases resulted in a plaintiff's verdict with the plaintiff receiving 2,891,421 dollars; and 18 cases resulted in a surgeon's verdict. However, when multiple defendant cases were excluded, there was <20,000 dollars difference between a negotiated settlement and plaintiff's verdict. Given the minimal monetary differences between a settlement and a plaintiff's verdict, when a surgeon is the sole defendant in a malpractice case concerning LC, the surgeon should encourage their carriers not to settle before trial; as only a trial will exonerate the surgeon. However, this encouragement should be tempered when there are "red flags" that favor the plaintiff, including multiple defendants (especially a hospital), male plaintiffs, bile duct injuries, knowledgeable and well-financed plaintiff's attorneys, and certain plaintiff's venues.     

The impact of system and diagnostic errors for medical litigation outcomes in orthopedic surgery

BackgroundMedical litigation resulting from medical errors has a negative impact on health economics for both patients and medical practitioners. In medical litigation involving orthopedic surgeons, we aimed to identify factors contributing to plaintiff victory (orthopedic surgeon loss) through a comprehensive assessment.MethodsThis retrospective study included 166 litigation claims against orthopedic surgeons using a litigation database in Japan. We evaluated the sex and age of the patient (plaintiff), initial diagnosis, diagnostic error, system error, the time and place of each claim that led to malpractice litigation, the institution's size, and clinical outcomes. The main outcome was the litigation outcome (acceptance or rejection) in the final judgment. Acceptance meant that the orthopedic surgeon lost the malpractice lawsuit. We conducted multivariable logistic regression analyses to examine the association of factors with an accepted claim.ResultsThe median age of the patients was 42 years, and 65.7% were male. The litigation outcome of 85 (51.2%) claims was acceptance. The adjusted median indemnity paid was $151,818. The multivariable analysis showed that diagnostic error, system error, sequelae, inadequate medical procedure, and follow-up observation were significantly associated with the orthopedic surgeon losing the lawsuit. In particular, claims involving diagnostic errors were more likely to be acceptance claims, in which the orthopedic surgeon lost (adjusted odds ratio 16.7, 95% confidence intervals: 4.7 to 58.0, p < 0.001). All of the claims in which the orthopedic surgeon lost were associated with a diagnostic or system error, with the most common one being system error.ConclusionsSystem errors and diagnostic errors were significantly associated with acceptance claims (orthopedic surgeon losses). Since these are modifiable factors, it is necessary to take measures not only for individual physicians but also for the overall medical management system to enhance patient safety and reduce the litigation risk of orthopedic surgeons.     

Clinical practice guidelines for pressure ulcer prevention can prevent malpractice lawsuits in older patients.

OBJECTIVE: To evaluate the impact of implementation of and compliance with practice guidelines for pressure ulcer (PU) prevention using medical malpractice litigation data. SETTING AND SUBJECTS: Forty-nine plaintiffs whose respective compensations ($14,418,770 in 35 plaintiffs) or dismissals had been reported in 2 legal databases. PU verdicts and settlements for plaintiffs 60 years of age and older were evaluated using the American Geriatric Society's Clinical Practice Guidelines, "Pressure Ulcers in Adults: Prediction and Prevention." METHODS: Litigation analysis was used to identify the effect, implementation of, and compliance with PU prevention practice guidelines on malpractice awards in PU lawsuits. Data were obtained using fact patterns from 2 legal databases, LEXIS and WESTLAW. Potential decreases in plaintiff awards and prevention of disability were calculated assuming that health care defendants had modified their behavior to conform to the practice guidelines. Possible increases in defendant awards were used to estimate the added risks to health care professionals of adopting these guidelines as the standard of care. MAIN OUTCOME MEASURES: Projected changes in verdicts, monetary awards expressed in dollars, and disability score. RESULTS: Had health care defendants followed these guidelines, $11,389,989 might have been saved in 20 lawsuits. Violations of guidelines appeared to "cluster" together, with many plaintiffs alleging breeches of several interrelated guidelines. It appears that improving the level of care required to remedy 1 guideline variation could improve the outcomes for the entire cluster. In contrast, the use of the guidelines in court as the standard of care against defendant health care professionals might have contributed to changing only 4 of 14 defense verdicts. CONCLUSIONS: Use of clinical pathways in these settings can benefit both caregivers and patients by favorably modifying preventive practice patterns while decreasing vulnerability to litigation. Conversely, the continuing threat of fault-based litigation against substandard practitioners and facilities provides an ongoing safeguard of patient rights and reduces the risk of subsequent disability.     

Clinical assessment of malpractice case scenarios in an anesthesiology department.

STUDY OBJECTIVE: To determine whether anesthesiologists agree with each other when assessing actual malpractice clinical scenarios, whether their assessments comport with the actual malpractice verdicts, and whether they can accurately guess jury verdicts. DESIGN: Survey study requesting anesthesiologists to review 12 malpractice case scenarios, administered twice. SETTING: Academic medical center department of anesthesiology. MEASUREMENTS AND MAIN RESULTS: Mean interphysician agreement, mean Likert values assessing relative negligence, mean agreement with jury verdicts, mean success at predicting actual jury verdicts for 12 actual jury verdict case scenarios. Respondent anesthesiologists appeared homogeneous by training and years of experience. They showed high (> 80%) agreement among themselves in their assessments of the malpractice case scenarios over the two administrations (p = 0.13). In addition, mean Likert values as to relative negligence assessments by respondent anesthesiologists were not significantly different between administrations by case (p = 0.09 to 1.00). However, of the eight cases with complete or virtually complete agreement between respondent anesthesiologists, three (37.5%) disagreed with the verdict rendered by the actual juries. In addition, anesthesiologists showed significant disagreement (> 30%) among themselves in four of the case scenarios, indicating there may not be agreement regarding the standard of care in these clinical circumstances. Finally, anesthesiologists predicted jury verdicts poorly, with success rates of 50% or less in seven of the 12 case scenarios. CONCLUSIONS: For this sample of homogeneous anesthesiologists who demonstrated high clinical agreement, it appears that the malpractice system may not be able to function on its own terms in adjudicating malpractice claims. Although there was agreement among respondent anesthesiologists, these assessments were in direct opposition to actual verdicts, a significant percentage of cases resulted in disagreements as to the appropriate standard of care, and anesthesiologists could not successfully predict jury verdicts. The malpractice system appears to be operating far from its theoretical ideal if these results could be applied more generally. Thus, in practice, the legal system, which is to provide an optimal level of injury deterrence, may be a poor method to limit patient injury, improve patient safety, and provide compensation to negligently injured patients in the health delivery system.     

Esophageal Perforation and Rupture: a Comprehensive Medicolegal Examination of 59 Jury Verdicts and Settlements

Background

Consequences accompanying esophageal perforation make this complication a prime litigation target. We characterize factors in jury verdicts and settlements regarding esophageal perforation, including operative procedure, patient demographics, alleged cause(s) of malpractice, outcome, and other factors.

Methods

Pertinent court records were examined for the aforementioned factors.

Results

Gastroenterologists, general surgeons, and anesthesiologists were the most commonly named defendants. Two thirds of outcomes were for the defendant, and 11.9 % were settled (median—$650,000); 20.3 % resulted in awarded damages (median—$1.2 M). Esophagogastroduodenoscopy was the most commonly litigated procedure, followed by intubation and Nissen fundoplication. Necessity of repair, delayed diagnosis, death, and inadequate consent were the most frequently cited factors in litigation.

Conclusions

An understanding of the factors important in determining legal responsibility is of great interest for practitioners in multiple specialties. The requirement of surgical repair and a delay in diagnosis are two of the most common factors present in litigated cases resulting in a payment. The importance of explicitly listing esophageal perforation in the informed consent for esophagogastroduodenoscopy, abdominal surgery, and any patients at risk of intubation injury needs to be emphasized.     

Medical Malpractice Trends in Foot and Ankle Surgery

Medical malpractice lawsuits can place significant economic and psychologic burden on a provider. Orthopedic surgery is one of the most common subspecialties involved in malpractice claims. There is currently no study examining malpractice lawsuits within foot and ankle surgery. Accordingly, the purpose of this work is to examine trends in malpractice claims in foot and ankle surgery. The Westlaw legal database was queried for lawsuits pertaining to foot and ankle surgery from 2008 to 2018. Only cases involving medical malpractice were included for analysis. All available details pertaining to the cases were collected. This included plaintiff demographic and geographic data. Details regarding the cases were also collected such as anatomical location, pathology, complications, and case outcomes. Forty-nine malpractice lawsuits pertaining to foot and ankle were identified. Most plaintiffs in these cases were adult females, and the majority of cases occurred in the northeast (53.1%). The most common anatomical region involved in claims involved the forefoot (29%). The majority of these claims involved surgery (65%). Infection was the most common complication seen in claims (22%). The jury ruled in favor of the defendant surgeon in most cases (73%). This is the first study to examine trends in medical malpractice within foot and ankle surgery. Infection was the most frequent complication seen in claims and forefoot surgery was the most common anatomic location. A large portion of claims resulted after nonoperative treatment. A better understanding of the trends within malpractice claims is crucial to developing strategies for prevention.     

The Medical Malpractice Risk Associated with Bariatric Surgery

Background: Bariatric surgery has been classified as high risk by the medical malpractice industry, but it is unclear what data support this classification. When a small group of physicians is separated from their peers and asked to support their malpractice claims, their premiums will often rise unfairly in relation to the outcome of the claims. This report outlines the results of a survey sent to the members of the American Society for Bariatric Surgery (ASBS) asking for information on malpractice claims. Methods: Surveys were mailed to the 285 ASBS members requesting which bariatric operations were performed, how many procedures were completed each year, details of any suits filed against the member including final outcome, and information on whether the members also performed gastric surgery for ulcer disease. Results: Surveys were returned by 165 members (58%) from surgeons in 33 states and Washington, D.C. Malpractice claims had been made after 107 bariatric procedures and three ulcer procedures with the risk of a suit being filed for a bariatric procedure being approximately 1.6/1,000 cases. The average monetary award was $88,667. Of the suits that resulted in a jury trial, 14% agreed with the plaintiff. Over half the cases that had been resolved were either dropped or dismissed before trial. Conclusions: The incidence of suit being brought against ASBS members performing bariatric procedures is low. Once filed, most cases do not reach a jury trial. Settlements are usually under $100,000. These data suggest that this group of bariatric surgeons do not represent a disproportionately large risk pool for medical malpractice insurance companies.     

Lawsuits After Primary and Revision Total Hip Arthroplasties: A Malpractice Claims Analysis

Background

As the prevalence of total hip arthroplasty (THA) expands, so too will complications and patient dissatisfaction. The goal of this study was to identify the common etiologies of malpractice suits and costs of claims after primary and revision THAs.

A nine-year review of medicolegal claims in neurosurgery

Introduction

Neurosurgery remains among the highest malpractice risk specialties. This study aimed to identify areas in neurosurgery associated with litigation, attendant causes and costs.

Methods

Retrospective analysis was conducted of 42 closed litigation cases treated by neurosurgeons at one hospital between March 2004 and March 2013. Data included clinical event, timing and reason for claim, operative course and legal outcome.

Results

Twenty-nine claims were defended out of court and twelve were settled out of court. One case required court attendance and was defended. Of the 42 claims, 28, 13 and 1 related to spinal (0.3% of caseload), cranial (0.1% of caseload) and peripheral nerve (0.07% of caseload) surgery respectively. The most common causes of claims were faulty surgical technique (43%), delayed diagnosis/misdiagnosis (17%), lack of information (14%) and delayed treatment (12%), with a likelihood of success of 39%, 29%, 17% and 20% respectively. The highest median payouts were for claims against faulty surgical technique (£230,000) and delayed diagnosis/misdiagnosis (£212,650). The mean delay between clinical event and claim was 664 days.

Conclusions

Spinal surgery carries the highest litigation risk versus cranial and peripheral nerve surgery. Claims are most commonly against faulty surgical technique and delayed diagnosis/misdiagnosis, which have the highest success rates and payouts. In spinal surgery, the most common cause of claims is faulty surgical technique. In cranial surgery, the most common cause is lack of information. Claims may occur years after the clinical event, necessitating thorough contemporaneous documentation for adequate future defence. We emphasise thorough patient consultation and meticulous surgical technique to minimise litigation in neurosurgical practice.     

Medical malpractice and the thyroid gland

BACKGROUND: A medical malpractice litigation "crisis" exists in this country. Analyzing litigation trends through verdict summaries may help understand causes. METHODS: Jury verdict reviews from 1987-2000 were obtained from a computerized database. Reviews compile data on defendants, plaintiffs, allegations of wrongdoing, and verdict summaries. RESULTS: Thirty suits from nine states occurred. Plaintiffs were women in 80% of the cases, with a median age of 41. Fifty percent of patients (15 of 30) had a bad outcome, (9 of 30 dead, 4 of 30 with neurologic deficits, 1 blind, and 1 alive with cancer). Thirty percent alleged surgical complications, mostly recurrent laryngeal nerve injury, and 75% of cancer patients alleged a delay, either through falsely negative biopsies or no biopsy taken. Respiratory events occurred in 43% and frequently resulted in large awards. CONCLUSIONS: The liberal use of fine-needle aspiration and documentation of surgical risks may help reduce litigation. Complications and bad outcomes do not indicate negligence. Analysis may contribute to risk management strategies or litigation reform.     

Characteristics and outcomes of malpractice claims after tonsillectomy.

OBJECTIVE: To characterize the background and outcomes of tonsillectomy malpractice claims. METHODS: Review of 69 New York State insurance claims (Part I) and 87 national court trials (Part II) alleging injury after tonsillectomy. RESULTS: Part I. New York State insurance cases were most commonly discontinued (44%) or settled (42%) before trial. Compensations with a settlement or verdict were made in 48 percent of cases. Part II. Death or major injury occurred in 52 percent of insurance cases, with a mean award of $403,656 being made to plaintiffs. Of cases reaching trial, 60 percent of plaintiffs were compensated. Awards against anesthesiologists were more frequent and higher than against surgeons ($5 million vs $839,650). Death or major injury occurred in 52 percent of court cases, resulting in mean indemnity of $3.8 million. Most cases of death or major injury were attributable to airway complications. CONCLUSIONS: Approximately half of both New York state claims and court cases involved death or devastating morbidity, mostly related to airway complications, resulting in large awards. Tonsillectomy is a source of uncommon but potentially high-dollar-value litigation exposure to the surgeon, often attributable to non-surgical complications.     

Common bile duct injuries during laparoscopic cholecystectomy that result in litigation

Background: Iatrogenic common bile duct injury is the worst complication of laparoscopic cholecystectomy. The goal of this study is to increase awareness of the problem and educate surgeons about the consequences of these injuries. Methods: A total of 46 bile duct injuries were analyzed by review of medical records, cholangiograms, videotapes, and surgeon statements. All cases were involved in malpractice litigation. Results: All types of injuries were represented. There were 15 transections, 11 excisions, 6 lacerations, 8 clip impingements, 3 burns, 2 bile leaks, and 1 cystic duct leak. In all, 72% of these injuries occurred in elective cases in which there was no acute inflammation. Cholangiograms were performed in 16 cases, but they were misinterpreted in 11 of them. Injury type and severity was similar in patients with and without cholangiography. A total of 80% of these injuries were not detected at the initial surgery. The average delay in diagnosis was 10 days. Complications were worse in patients with delayed diagnosis. Primary surgeons had less successful outcomes from repairs than referral surgeons (27% versus 79%). In 86% of cases, litigation was resolved in favor of plaintiffs by settlement or verdicts. The average award was $214,000. Conclusions: Factors that predispose to lawsuits include treatment failures in immediately recognized injuries, complications that result from delays in diagnosis, and misinterpretation of abnormal cholangiograms. Injury prevention can be improved by increased awareness of common mistakes. Improved cholangiographic technique and interpretation should decrease injury severity, delays in diagnosis, and subsequent morbidity.