Updates in medical malpractice: an otology perspective.

PURPOSE OF REVIEW: Most surgeons at some point are involved in a medical malpractice case. There has been an increase in the number of manuscripts that analyse malpractice databases and insurance claims, as well as commentaries on the current medicolegal climate recently. This manuscript broadly reviews articles of interest to all providers and then focuses on malpractice in otology. RECENT FINDINGS: Medical malpractice articles (particularly topics related to otologic surgery published within the last 1-2 years) were searched. The growing body of literature can be divided into the themes of general negligence, mitigating injuries and the use of clinical practice guidelines in the courtroom as guidance for expert witnesses. SUMMARY: Recent findings suggest that the frequency of malpractice claims may be decreasing. Hearing loss and facial nerve injury are the most common injuries associated with otologic surgery. These injuries can be costly when negligence is found. Clinic practice guidelines are slowly being used as evidence in the courtroom and there are established guidelines that an expert witness must follow should a surgeon be called to give testimony.

Lessons learned in otologic surgery: 30 years of malpractice cases in the United States.

OBJECTIVE: To analyze malpractice litigation trends to better understand the causes and outcomes of suits involving otologic surgeries to prevent future litigation and improve physician awareness. METHODS: Court records of legal trials from 1983 to 2012 were obtained from 2 major computerized databases-WESTLAW and LexisNexis. Data were compiled on the demographics of the defendant, plaintiff, use of otolaryngologists/otologists as expert witnesses, nature of injury, type of surgery, legal allegations, verdicts, and judgments. RESULTS: Fifty-eight unique cases met inclusion criteria and were selected for review. The most common surgeries that went to trial were mastoidectomy (48%), ossiculoplasty (21%), and tympanoplasty (16%). Eleven (19%) of the cases were resolved through a settlement before a verdict was reached. Verdicts in favor of the plaintiffs (31%) were awarded an average of $1,131,189. The most common alleged injuries were hearing loss (45%) and facial nerve injury (38%). Of the cases found in favor of the plaintiff, the most common reasons cited were improper performance of the surgery (50%), failure to properly diagnose and treat (33%), and inadequate informed consent and delay in diagnosis (22% each). Case outcomes involving pediatric patients were not significantly different than those of adults (p = 0.34); however, adults received higher financial awards on average ($1 million versus $232,000; p < 0.0003). CONCLUSION: Obtaining an appropriate diagnosis, thoroughly discussing all options and potential risks, presenting realistic expectations, and executing the surgery correctly are crucial to patient care. Understanding the reasons surgeons go to trial may assist in mitigating risk for potential lawsuits.

Malpractice in otology.

OBJECTIVE: (1) Analyze otologic procedural malpractice litigation in the United States of America. (2) Discuss ways to prevent future malpractice litigation. STUDY DESIGN AND SETTING: Case series with record review. METHODS: The study is a case series with review of court records pertaining to otologic procedures using the Westlaw legal database. The phrase medical malpractice was searched with terms related to otology and neurotology obtained from the AAO-HNS website. RESULTS: Of the 47 claims that met inclusion criteria, 63.8% were decided in the physician's favor, 25.5% were decided in the plaintiff's favor (average payment $446,697), and 10.6% were settled out of court (average payment $372,607). Cerumen removal was the most common procedure leading to complaint (21.3%) and the most likely procedure to lead to payment (50.0%). Hearing loss was the most common injury claimed among all cases (53.2%) and resulted in a high proportion of cases that led to payment (40.0%). Other common alleged injuries were facial nerve injury (27.7%), tympanic membrane perforation (23.4%), need for additional surgery (42.6%), and lack of informed consent (31.9%). In addition, cases resulting from acoustic neuroma or stapedectomy resulted in higher payments to the plaintiffs (average $3,498,597 and $2,733,000, respectively). CONCLUSIONS: Malpractice trials were resolved in the defendant's favor in the majority of cases. Cerumen removal was the most common procedure leading to complaint and the procedure most likely to result in payment. Hearing loss was the most common injury cited. Payment was highest in acoustic neuroma and stapedectomy cases.

Clinical guidelines and professional liability: a short comment from the legal side.

The paper explores the relationship between clinical guidelines and medical liability. In order to ascertain the standard of care required for example in ear surgery, courts rely on expert opinions and on existing clinical guidelines from medical societies. They assume that clinical guidelines express the reasonable standard of care that, when followed, insulates surgeons from liability. But judges keep the right to find that a set of clinical guidelines does not sufficiently protect the patient's health interests. If in contrast clinical guidelines are overly cautious (e.g. by requiring a scientifically questionable examination), there is no incentive stemming from the legal rules on medical liability to deter surgeons from following the guidelines. However, a growing concern about health costs may in the future influence professional behaviour as much as fear of a malpractice suit today.