Trends in malpractice litigation in relation to the delivery of breast care in the National Health Service

Malpractice litigation involving the delivery of breast care has been evaluated in the United States of America (USA) but is a relatively new area of study in the United Kingdom (UK). We sought to study and evaluate the emerging trends in litigation claims in relation to breast disease with the National Health Service Litigation Authority (NHSLA) over the last 15 years, up to December 2010.     

Analysis of malpractice claims in breast care for poor cosmetic outcome

Claims for poor cosmetic outcome account for a large proportion of breast care malpractice litigation in the UK. Detailed analysis of such claims has not been conducted. We sought to analyse National Health Service Litigation Authority (NHSLA) data pertaining to breast care over the period September 2005-April 2008, focussing on claims for poor cosmetic outcome. Data from a medical indemnity organisation detailing similar claims in the private sector were also analysed. Comparison of the NHSLA data with previously obtained NHSLA data (May 1995-September 2005) demonstrated an upward trend in claims for poor cosmetic outcome. The majority of claimants for poor cosmesis had benign disease and the vast majority of claimants with breast malignancy had undergone breast reconstruction. The majority of claims for poor cosmetic outcome were against plastic surgeons. This was more marked in the private sector data than in the NHSLA data, reflecting their workload.     

Fourteen years of litigation claims in cardiothoracic surgery in the United Kingdom National Health Service

Approximately 36 400 cardiac and 23 100 thoracic operations are carried out in the United Kingdom between 2006 and 2015. National Health Service (NHS) resolution, as known as the NHS litigation authority, is one of the essential bodies of the Department of Health. Its purpose is to provide NHS expertise to resolve concerns fair and square share learning for improvement. We aim to evaluate and increase awareness of medicolegal cases in cardiothoracic surgery. Total numbers and details of claims coded by NHS resolution in cardiothoracic surgery from 2004 to 2017 were requested under the Freedom of Information Act 2000. The data provided in successful claims is further breakdown into damages paid to the claimant, defence cost, claimant cost paid and the sum of the three. In contrast, unsuccessful claims only include the defence cost. Moreover, data provided also includes further analysis of primary causes and primary injuries for Claims Closed/Settled with damages paid. There were 753 claims recorded from 2004 to 2017, of which 415 (55.11%) were successful. The number of claims has been steadily increasing since 2004, with two significant raises from 2009/10 to 2010/11 (37‐55, 48.64% raise) and 2012/13 to 2013/14 (49‐69, 40.82% raise). The mean successful claim ratio was 69.58% (range, 47.56%‐ 83.33%) There is also a steady increase in the successful ratio from 2004 to 2017. In summary, this is the first study published in relation to litigation claims on cardiothoracic surgery in the United Kingdom. The results have provided insight on claims made against cardiothoracic surgery.     

Litigation related to casting in Orthopaedics—An analysis of claims against the National Health Service in England

Orthopaedic casts have been used to treat musculoskeletal conditions for hundreds of years and are still a fundamental component of treating a variety of disorders. As surgical techniques have advanced the frequency of use of orthopaedic casts has declined. With Orthopaedics being is one of the most litigious specialties in medicine we sough to evaluate how this related to casting in Orthopaedics and how we could learn from past mistakes.We analysed litigation claims related to Orthopaedic casts from 1995 to 2010 in which the claims were closed. 43 cases were related to orthopaedic casts. The total costs of these claims were over £2.3 million with an average total cost of £48,500 per claim. The most common cause for claim was harm caused when a cast was applied too tight and secondly from removing the cast. This is the first study to evaluate litigation claims related to Orthopaedic casts and highlights potential complications that if avoided will certainly improve the care of the patients and avoid unnecessary litigation.     

Litigation related to anaesthesia: analysis of claims against the NHS in England 2008–2018 and comparison against previous claim patterns

We reviewed all 1230 claims against anaesthesia notified to NHS Resolution (formerly the NHS Litigation Authority, 1995–2017) in England between 2008 and 2018. Claims were categorised by incident type, severity (whether physical or psychological), and cost, and comparisons were made against a similar published analysis of data from 1995 to 2007. While the annual number of claims against anaesthesia increased by 62% from the earlier period, anaesthesia now accounts for smaller proportions of all claims submitted to NHS Resolution (1.5% vs. 2.5%) and of the total cost of all claims (0.7% vs. 2.4%). The absolute costs related to anaesthesia claims rose over 300%, totalling £145 million between 2008 and 2018, but the mean cost per closed claim (retail price index adjusted) fell by 6% to £74,883. The most common clinical categories were regional anaesthesia (24%), inadequate anaesthesia (20%) and drug administration (20%). Claims related to airway management, central venous catheterisation and cardiac arrest remained infrequent but severe and costly. The proportion of claims relating to regional anaesthesia and obstetric anaesthesia fell significantly, but claims relating to peripheral nerve blockade doubled. Our analysis includes categories relating to organisational and human factors which are present in a substantial proportion of claims; categories with the highest mean cost per claim included delayed care, planning, monitoring and consent. Overall, the specialty of anaesthesia is at low risk of litigation. Our analysis provides important insights into current and changing patterns in claim distributions that may help improve the quality of patient care and reduce future litigation. We recommend the establishment of a structure for national review and learning from all cases of litigation.     

Breast Cancer Litigation: An Update with Practice Guidelines

▪ Abstract: Cases involving breast cancer are the second most common cause of malpractice litigation. The leading allegation is failure to diagnose, followed by improper treatment. The most common physicians involved are those giving direct care to women: obstetricians/gynecologists, family medicine physicians, and internists. This review addresses frequent areas of litigation, offering practice guidelines for avoidance of malpractice claims. In addition, two new areas of breast cancer management will be reviewed—breast cancer prevention and breast cancer genetic testing—as potential new areas of malpractice litigation. ▪     

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.     

Bisphosphonate-related osteonecrosis of the jaws: legal liability from the perspective of the prescribing physician

Recently, it has been reported that patients administered with bisphosphonates (BP), in particular cancer patients receiving intravenous amino-bisphosphonates, as well as patients taking oral BP for prevention/treatment of diseases of altered bone turnover, may be affected by a significant adverse reaction—BP-related osteonecrosis of the jaws (BRONJ). This condition may cause high morbidity and detriment of quality of life. Its treatment is complex and often unsatisfactory, and prevention strategies may have limited effectiveness, if any; thus, BRONJ may become a source of litigation in the near future. Although most cases seem to be triggered by invasive dental procedures and oral health care providers are more exposed to malpractice claims and legal actions pursuant to BRONJ, the attribution of liability requires caution. In fact, types of possible negligence claims against oral health care providers have already been highlighted. However, according to the medico-legal methodology, since BRONJ is an adverse reaction to BP administration, the attribution of liability, if any, requires a comprehensive consideration of the chain of events and figures acting before, and potentially related to BRONJ. The physician prescribing BP at the start of this chain has specific duties which we are going to address, and breaching these duties may set the stage for potential liability claims.     

Informing and consenting for anaesthesia

Public expectations of healthcare have changed dramatically over the last 10-20 years, particularly in relation to the involvement of patients in determining treatment options and the selection of the most appropriate treatment plan. Paternalistic actions of doctors, which involved telling the patient what treatment they were going to receive, without discussing risks and benefits of various options, are no longer acceptable. This has been reflected in decisions reached by the courts in cases in which patients have entered litigation on the basis that inadequate information was given to them before treatment, and that they were unaware of risks of complications which subsequently materialised. If such claims are successful, the patient is entitled to financial compensation even if the treatment was carried out to the highest standard. Although most claims of this nature are brought against surgeons, similar claims are likely in relation to anaesthetic procedures. Complaints about lack of information or inadequate consent can also result in a doctor being reported to regulatory authorities. It is therefore necessary for anaesthetists to be aware of current issues surrounding provision of information and obtaining consent for anaesthesia in various categories of patient. This article summarises these issues.     

Is breast cancer care in accord with clinical practice guidelines: a consumer audit

OBJECTIVES: To assess whether information, support and other psychosocial care for women with early breast cancer in Australia is in accord with published Australian clinical practice guidelines. DESIGN: An interview survey of a population-based sample of women with early breast cancer. SETTING: The whole of Australia. PARTICIPANTS: Women diagnosed with early breast cancer 6-12 months before the survey were identified through the population-based cancer registries. An initial sample of 1184 women was drawn from the cancer registries; the doctors of 104 women did not agree to any participation and a further 212 women were excluded as ineligible. A randomly selected sample of 832 of the 868 women who were eligible to participate were invited to participate in the study and 544 (76%) of the 716 who could be contacted completed a full interview. MAIN OUTCOME MEASURES: A telephone interview covering 12 aspects of care recommended in the published guidelines. Results: Most women received care in accord with the following recommendations: diagnosis given by a senior doctor (95%), face to face (86%) and in an open manner (90%). Fewer women received recommended care in relation to: involvement in decision making (73%), information about clinical trials (13%); receiving breast reconstruction following mastectomy (8%), evidence-based consumer guides (62%) and adequate support for families (65%). CONCLUSIONS: The extent to which the provision of information, support and psychosocial care is in accord with recommendations can be audited effectively by a survey of women who have received treatment. Some 80% or more of women received care in accord with half of the 12 target guidelines; however, further programmes are required to improve access to information and participation in clinical trials and to better understand participation in decision making.     

NHSLA litigation in hip fractures: Lessons learnt from NHSLA data

Hip fractures are a major cause of trauma related death, usually occurring in vulnerable elderly patients. There are an estimated 70,000 hip fractures in the UK per year with numbers set to rise. The estimated annual cost to the healthcare economy is in the region of £2 billion. A 17-year review examining litigation related to hip fractures was undertaken.Under a freedom of information request, data was obtained relating to all orthopaedic claims made to the NHS Litigation Authority (NHSLA) between 1995 and 2012. Data was filtered to identify cases involving hip fractures examining litigation trends related to this specific area.10263 NHSLA orthopaedic cases were identified, of which 13.3% (n = 1364) cases related to the hip and femur. Hip fractures made up 16.7% (n = 229). The total cost of hip fracture litigation was over £7 million with an average cost per case of £32,700. The commonest reasons for litigation were diagnostic errors (30.6%), issues with care (24.9%) alleged incompetent surgery (15.7%) and development of pressure sores (5.7%).This study highlights the main causes of litigation in patients sustaining hip fractures, with diagnosis in the emergency department and ward presenting a significant problem. In addition, the data identifies a range of care related issues, as well as several surgical factors and highlights the importance of pressure area care. We discuss these and make suggestions on how to improve practice in this area with the aim of improving patient care and reducing litigation.     

Quality and outcomes in anaesthesia: lessons from litigation

Healthcare litigation in the UK continues to grow at an alarming rate, with claims against anaesthetists and critical care physicians increasing each year. This has led to a huge financial burden for the taxpayer and a sharp increase in professional indemnity fees for individual doctors. Although such litigation should provide valuable information to educate practitioners and reduce future similar claims, there appear to be significant barriers preventing important lessons from being learned. Detailed learning opportunities are available only to the healthcare providers being sued or the expert witnesses employed to analyse the claims. Most practitioners have to rely on indemnifiers' case reports, closed-claim analyses, and ad hoc publications for information. In this review, we suggest ways in which important lessons from litigation could be brought to the attention of all clinicians. Currently, most clinicians are unable to determine whether key components of their practice such as consent, clinical decision-making, and documentation are of an acceptable standard for legal scrutiny. By reporting outcomes of Coroners' inquests, clinical and criminal negligence cases, and referrals to the General Medical Council, it would be hoped that more explicit standards of performance could be derived. Ultimately, this may not only improve patient safety, but protect practitioners from unjustifiable claims. Finally, given the critical importance of experts in the above process, we believe that a system for professional registration and regulation should be explored to ensure that they offer accurate, representative, and unbiased opinions and have the appropriate expertise in the subject matter to be analysed.     

Nerve injury associated with anesthesia

The authors examined the American Society of Anesthesiologists Closed Claims Study database to define the role of nerve damage in the overall spectrum of anesthesia-related injury that leads to litigation. Of 1,541 claims reviewed, 227 (15%) were for anesthesia-related nerve injury. Ulnar neuropathy represented one-third of all nerve injuries and was the most frequent nerve injury. Less-frequent sites of nerve injury were the brachial plexus (23%) and the lumbosacral nerve roots (16%). In a large proportion of cases, the exact mechanism of injury was unclear despite evidence of intensive investigation in the claim files. Median payment for nerve damage claims involving disabling injury was $56,000, which was significantly lower than the $225,000 median payment for claims for disabling injury not involving nerve damage (P less than 0.01). The closed claims reviewers judged that the standard of care had been met significantly more often in claims involving nerve damage than in claims not involving nerve damage. The authors conclude that nerve damage is a significant source of anesthesia-related claims but that the exact mechanism of nerve injury is often unclear. In particular, ulnar nerve injuries seemed to occur without identifiable mechanism.     

ASA closed claims in obstetrics: lessons learned

What have we learned so far from the Closed Claims database? For the most part, analysis of the claims made supports the generally held beliefs about the medico-legal risk of obstetrical anesthesia. However, the obstetric files do reveal a risk profile that differs significantly from the nonobstetric files. One of the most surprising observations was the large proportion of relatively "minor" injuries in the obstetric files in contrast to the nonobstetric files. These claims may simply be the result of an increased incidence of such problems in obstetric patients. However, careful review of statements made in the files revealed that a substantial number of patients were unhappy with the care provided and felt themselves ignored and mistreated. Meyers has suggested that malpractice litigation serves the purpose not only of reparation of injury for substandard care but also one of emotional vindication [19]. Not unexpectedly, anesthesiologists are frequently named in claims involving bad fetal outcomes. Most of these claims, for whatever reason, do not result in payments to the litigant. Problems involving airway management, focusing on difficult intubation and pulmonary aspiration, are unfortunately well represented in the obstetrical files. There is no clear indication that this is changing. One of the principle causes of major adverse outcomes with regional anesthesia is local anesthetic toxicity. There is evidence that the frequency of these claims is on the decline. Nerve injury as a result of direct neural trauma continues to appear at regular intervals in the claims files. It is clear from review of the ASA Closed Claim database that there are many unrecognized factors, separate from major injuries, that must be important motivating factors in patients who bring claims against anesthesiologists. A lawsuit does not necessarily signify injury. It has been suggested that the number of patients harmed by negligent care who actually file a claim may be less than 2% [12]. In contrast, lawsuits are usually not filed unless people perceive that they or a family member have been wronged by the system. Anesthesia care providers should give attention to conducting themselves in such a manner that patients will not be motivated to bring suit for an unexpected outcome [20]. Therefore, merely focusing one's attention on reducing the potential for major injuries may have little effect on solving the medico-legal dilemma in obstetrical anesthesia. The uniqueness of the ASA Closed Claims database is that it reflects the consumer's perspective. This point can not be emphasized enough because one of the best measures of quality of care comes from the patient's perspective. What can help? Careful personal conduct Establish good rapport Involvement in prenatal education Early pre-anesthetic evaluation Provide realistic expectation Regularly review potential major and minor risks.     

Claims in total hip arthroplasty: analysis of the instigating factors,costs and possible solution

Over the years, the number of total hip replacements has been steadily increasing. Despite the improvement in surgical results, the number of claims for malpractice is higher. The primary endpoint of this work is to provide an analysis of litigation after hip replacement, to outline what are the instigating causes and costs. The secondary endpoint is to propose a possible preventive strategy for an improved care and a reduction in legal proceedings. The data of this study were collected from medical and legal files and from professional liability insurance of our institution from January 2005 to December 2016. Out of a total of 4770 THA, 40 claims were received. Peripheral nerve injuries represent the first cause of litigation (37%), followed by infectious complications, leg length discrepancy, metallosis, dislocations of the implant and a case of deep vein thrombosis. From the analysis of the past trial judgment, complications such as nerve lesions and infections are almost always recognized, as a medical error, with a high percentage of claims settled. This study shows the necessity of preventive strategies to reduce the higher number of claims for malpractice in total hip arthroplasty. Some complications such as nerve injuries and infection are frequently considered directly dependent on physician’s errors. Litigations can be reduced providing evidence of a diligent execution of the surgical procedure and of a proper postoperative management: the correct compilation of a specific informed consent and adequate doctor–patient communication.     

Medical malpractice and anesthesiology: literature review and role of the expert witness

PURPOSE: To provide a narrative review of the physician experience of medical malpractice litigation applied to an anesthesiology case with particular emphasis on the role played by medical expert witnesses. SOURCES: Literature searches were conducted of English-language medical publications published between 1996 - 2006 using both Medline and Pubmed databases. Key words included: "medical malpractice"; "medical malpractice litigation"; "medical expert witness"; "expert witness liability", "expert witness bias"; "hindsight bias"; and "outcome bias". PRINCIPAL FINDINGS: Patient injury resulting from medical care is common but most injured patients do not sue. Implicit review of medical files is biased to an important degree by the occurrence of severe injury; care is more often deemed substandard when the resulting injury is severe. Expert analysis of medical mal-occurrences is influenced by both hindsight and outcome bias. Compensation for those who do sue is influenced by the severity of injury and the degree of disability. The activity of experts is not commonly subject to review by peers, professional groups or licensing authorities. CONCLUSIONS: The legal process for resolving patient claims against physicians is well delineated and transparent; its operational features are complex and prejudiced by severe outcomes. Bias is pervasive in the analysis of medical occurrences and may result in findings against caregivers which are unfair.     

Variation in Expert Opinion in Medical Malpractice Review

Background: Expert opinion in medical malpractice is a form of implicit assessment, based on unstated individual opinion. This contrasts with explicit assessment processes, which are characterized by criteria specified and stated before the assessment. Although sources of bias that might hinder the objectivity of expert witnesses have been identified, the effect of the implicit nature of expert review has not been firmly established.

Methods: Pairs of anesthesiologist-reviewers independently assessed the appropriateness of care in anesthesia malpractice claims. With potential sources of bias eliminated or held constant, the level of agreement was measured.

Results: Thirty anesthesiologists reviewed 103 claims. Reviewers agreed on 62% of claims and disagreed on 38%. They agreed that care was appropriate in 27% and less than appropriate in 32%. Chance-corrected levels of agreement were in the poor-good range (kappa = 0.37; 95% CI = 0.23 to 0.51).     

Causes and Costs of a Decade of Litigation Following Emergency Appendectomy in England

Background

There has been recent interest in the delayed and nonoperative management of appendicitis. The present study assessed the causes and costs of litigation against surgeons following emergency appendectomy, with an emphasis on claims relating to preoperative management.

Materials and methods

Data were obtained from the English NHS Litigation Authority for claims relevant to appendectomy between 2002 and 2011. Two authors independently extracted data and classified it against predetermined criteria.

Results

Successful litigation occurred in 66 % of closed cases (147/223) with a total payout of £8.1 million. There were 24 claims against organizational operating room delays (9 % of total) and 27 against delayed diagnosis (10 %), with respective success rates of 70 and 68 %. From 21 claims relating to damage to fertility, nine were due to either delayed diagnosis or organizational operating room delays. Misdiagnosis was the second most common cause for litigation (16 %), but it had the lowest likelihood of success (49 %). Faulty surgical technique was the most common reason for litigation (39 %), with a 70 % likelihood of success. Of eight claims related to fatality, one was due to unacceptable preoperative delay leading to preventable perforated appendicitis. The overall highest median payouts were for claims of damage to fertility (£52,384), operating list delays (£44,716), and delayed diagnosis (£42,292).

Conclusions

There were significant medicolegal risks surrounding delays related to access to operating lists and diagnosis. Whereas future evidence regarding the safety of delayed appendectomy may provide scientific defense against these claims, the present study provides evidence of the current medicolegal risk to surgeons following delayed treatment of appendicitis.     

Professional Liability in Orthopaedics and Traumatology in Italy

Background

Interest in medical errors has increased during the last few years owing to the number of medical malpractice claims. Reasons for the increasing number of claims may be related to patients’ higher expectations, iatrogenic injury, and the growth of the legal services industry. Claims analysis provides helpful information in specialties in which a higher number of errors occur, highlighting areas where orthopaedic care might be improved.

Questions/purposes

We determined: (1) the number of claims involving orthopaedics and traumatology in Rome; (2) the risk of litigation in elective and trauma surgery; (3) the most common surgical procedures involved in claims and indemnity payments; (4) the time between the adverse medical event and the judgment date; and (5) issues related to informed consent.

Methods

We analyzed 1925 malpractice judgments decided in the Civil Court of Rome between 2004 and 2010.

Results

In total, 243 orthopaedics claims were filed, and in 75% of these cases surgeons were found liable; 149 (61%) of these resulted from elective surgery. Surgical teams were sued in 30 claims and found liable in 22. The total indemnity payment ordered was more than €12,350,000 (USD 16,190,000). THA and spinal surgery were the most common surgical procedures involved. Inadequate informed consent was reported in 5.3% of cases.

Conclusions

Our study shows that careful medical examination, accurate documentation in medical records, and adequate informed consent might reduce the number of claims. We suggest monitoring of court judgments would be useful to develop prevention strategies to reduce claims.     

Learning from the law: a review of 21 years of litigation for anaesthetic negligence resulting in peripartum hypoxic ischaemic encephalopathy

One of the most devastating complications that can result from medical mismanagement during labour and delivery is hypoxic ischaemic encephalopathy. Hypoxic ischaemic encephalopathy has profound implications for the newborn and its family, as well as for the healthcare team involved. Hypoxic ischaemic encephalopathy can take only minutes to develop, but the repercussions of this complication can last a lifetime. A proportion of these injuries arise from failure to deliver the baby within a sufficiently short time frame once fetal compromise has been recognised. Obstetric anaesthetists are often involved in such claims, usually in relation to a perception that provision of anaesthesia for caesarean section was unduly delayed. In the following article, using a database of over 360 cases spanning 21 years, we break down and examine the recurrent components of medicolegal claims concerning the anaesthetic involvement in hypoxic ischaemic encephalopathy, and consider how increased awareness of the anaesthetic contribution to this complication might reduce future harm, improve clinical standards and consequently decrease the need for litigation.