Malpractice Claims Following Major Liver and Pancreatic Surgeries: What Can we Learn?

INTRODUCTION: General surgery is a highly litigious specialty. Lawsuits can be a source of emotional distress and burnout for surgeons. Major hepatic and pancreatic surgeries are technically challenging general surgical oncology procedures associated with an increased risk of complications and mortality. It is unclear whether these operations are associated with an increased risk of lawsuits. The objective of the present study was to summarize the medical malpractice claims surrounding pancreatic and hepatic surgeries from publicly available court records. METHODS: The Westlaw legal database was searched and analyzed for relevant malpractice claims from the last two decades. RESULTS: Of 165 search results, 30 (18.2%) cases were eligible for inclusion. Appellant cases comprised 53.3% of them. Half involved a patient death. Including co-defendants, a majority (n = 21, 70%) named surgeons as defendants, whereas several claims (n = 13, 43%) also named non-surgeons. The most common cause of alleged malpractice was a delay in diagnosis (n = 12, 40%). In eight of these, surgery could not be performed. The second most common were claims alleging the follow-up surgery was due to negligence (n = 6). Collectively, 20 claims were found in favor of the defendant. Seven verdicts (23.3%) returned in favor of the plaintiff, two of which resulted in monetary awards (totaling $1,608,325 and $424,933.85). Three cases went to trial or delayed motion for summary judgment. There were no settlements. CONCLUSIONS: A defendant verdict was reached in two-thirds of malpractice cases involving major hepatic or pancreatic surgery. A delay in diagnosis was the most cited claim in hepatopancreaticobiliary lawsuits, and defendants may often practice in nonsurgical specialties. While rulings favoring plaintiffs are less frequent, the payouts may be substantial.

Common Reasons for Malpractice Lawsuits Involving Pulmonary Embolism and Deep Vein Thrombosis.

BACKGROUND: Pulmonary embolism and deep vein thrombosis are common clinical entities, and the related malpractice suits affect all medical subspecialties. Claims from malpractice litigation were analyzed to understand the demographics of these lawsuits and the common reasons for pursuing litigation. METHODS: Cases entered into the Westlaw database from March 5, 1987, to May 31, 2018, were reviewed. Search terms included "pulmonary embolism" and "deep vein thrombosis." RESULTS: A total of 277 cases were identified. The most frequently identified defendant was an internist (including family practitioner; 33%), followed by an emergency physician (18%), an orthopedic surgeon (16%), and an obstetrician/gynecologist (9%). The most common etiology for pulmonary embolism was prior surgery (41%). The most common allegation was "failure to diagnose and treat" in 62%. Other negligence included the failure to administer prophylactic anticoagulation while in the hospital (18%), failure to prescribe anticoagulation on discharge (8%), failure to administer anticoagulation after diagnosis (8%), and premature discontinuation of anticoagulation (2%). The most frequently claimed injury was death in 222 cases (80%). Verdicts were found for the defendant in 57% of cases and for the plaintiff in 27% and settled in 16%. CONCLUSIONS: The most frequently cited negligent act was the failure to give prophylactic anticoagulation, even after discharge. The trends noted in this study may potentially be addressed and therefore prevented by systems-based practice changes. The most common allegation, "failure to diagnose and treat," suggests that first-contact doctors such as emergency physicians and primary care practitioners must maintain a high index of suspicion for deep vein thrombosis/pulmonary embolism.

Malpractice Litigation for Compartment Syndrome.

BACKGROUND: The aim of this study was to analyze litigation involving compartment syndrome to identify the causes and outcomes of such malpractice suits. A better understanding of such litigation may provide insight into areas where clinicians may make improvements in the delivery of care. METHODS: Jury verdict reviews from the Westlaw database from January 1, 2010 to January 1, 2018 were reviewed. The search term "compartment syndrome" was used to identify cases and extract data on the specialty of the physician defendant, the demographics of the plaintiff, the allegation, and the verdict. RESULTS: A total of 124 individual cases involving the diagnosis of compartment syndrome were identified. Medical centers or the hospital was included as a defendant in 51.6% of cases. The most frequent physician defendants were orthopedic surgeons (45.96%) and emergency medicine physicians (20.16%), followed by cardiothoracic/vascular surgeons (16.93%). Failure to diagnose was the most frequently cited claim (71.8% of cases). Most plaintiffs were men, with a mean age of 36.7 years, suffering injuries for an average of 5 years before their verdict. Traumatic compartment syndrome of the lower extremity causing nerve damage was the most common complication attributed to failure to diagnose, leading to litigation. Forty cases (32.25%) were found for the plaintiff or settled, with an average award of $1,553,993.66. CONCLUSIONS: Our study offers a brief overview of the most common defendants, plaintiffs, and injuries involved in legal disputes involving compartment syndrome. Orthopedic surgeons were most commonly named; however, vascular surgeons may also be involved in these cases because of the large number of cases with associated arterial involvement. A significant percentage of cases were plaintiff verdicts or settled cases. Failure to diagnosis or delay in treatment was the most common causes of malpractice litigation. Compartment syndrome is a clinical diagnosis and requires a high level of suspicion for a timely diagnosis. Lack of objective criteria for diagnosis increases the chances of medical errors and makes it an area vulnerable to litigation.

Delayed Diagnosis Is the Primary Cause of Sarcoma Litigation: Analysis of Malpractice Claims in the United States.

BACKGROUND: Sarcoma care is highly litigated in medical malpractice claims. Understanding the reasons for litigation and legal outcomes in sarcoma care may help physicians deliver more effective and satisfying care to patients while limiting their legal exposure. However, few studies have described malpractice litigation in sarcoma care. QUESTIONS/PURPOSES: (1) What percentage of sarcoma malpractice cases result in a defendant verdict? (2) What is the median indemnity payment for cases that result in a plaintiff verdict or settlement? (3) What are the most common reasons for litigation, injuries sustained, and medical specialties of the defendant physicians? (4) What are the factors associated with plaintiff verdicts or settlements and higher indemnity payments? METHODS: The national medicolegal database Westlaw was queried for medical malpractice cases pertaining to sarcomas that reached verdicts or settlements. Cases from 1982 to 2018 in the United States were included in the study to evaluate for trends in sarcoma litigation. Demographic and clinical data, tumor characteristics, reasons for litigation, injuries, and legal outcomes were recorded for each case. A univariate analysis was performed to identify factors associated with plaintiff verdicts or settlements and higher indemnity payments, such as tumor characteristics, defendant's medical or surgical specialty, reason for litigation, and injuries sustained. A total of 92 cases related to sarcomas were included in the study, of which 40 were related to bone sarcomas and 52 were related to soft-tissue sarcomas. Eighty-five percent (78 of 92) of cases involved adult patients (mean age ± SD: 40 ± 15 years) while 15% (14 of 92) of cases involved pediatric patients (mean age ± SD: 12.5 ± 5 years). RESULTS: Thirty-eight percent (35 of 92) of the included cases resulted in a defendant verdict, 30% (28 of 92) resulted in a plaintiff verdict, and 32% (29 of 92) resulted in a settlement. The median (interquartile range [IQR]) indemnity payment for plaintiff verdicts and settlements was USD 1.9 million (USD 0.5 to USD 3.5 million). Median (IQR) indemnity payments were higher for cases resulting in a plaintiff verdict than for cases that resulted in a settlement (USD 3.3 million [1.1 to 5.7 million] versus USD 1.2 million [0.4 to 2.4 million]; difference of medians = USD 2.2 million; p = 0.008). The most common reason for litigation was delayed diagnosis of sarcoma (91%; 84 of 92) while the most common injuries cited were progression to metastatic disease (51%; 47 of 92) and wrongful death (41%; 38 of 92). Malpractice claims were most commonly filed against primary care physicians (26%; 28 of 109 defendants), nononcology-trained orthopaedic surgeons (23%; 25 of 109), and radiologists (15%; 16 of 109). Cases were more likely to result in a ruling in favor of the plaintiff or settlement if a delay in diagnosis occurred despite suspicious findings on imaging or pathologic findings (80% versus 51%; odds ratio 3.84 [95% CI 1.34 to 11.03]; p = 0.02). There were no differences in indemnity payments with the numbers available in terms of tumor type, tumor location, defendant specialty, reason for litigation, and resulting injuries. CONCLUSIONS: Many lawsuits were made against primary care physicians, nononcology-trained orthopaedic surgeons, or radiologists for a delayed diagnosis of sarcoma despite the presence of imaging or histologic findings suspicious for malignancy. Although previous studies of bone and soft-tissue sarcomas have not shown a consistent association between time to diagnosis and decreased survival, our study suggests that physicians are still likely to lose these lawsuits because of the perceived benefits of an early diagnosis. CLINICAL RELEVANCE: Physicians can mitigate their malpractice risk while reducing delays in diagnosis of sarcomas by carefully reviewing all existing diagnostic studies, establishing closed-loop communication protocols to communicate critical findings from diagnostic studies, and developing policies to facilitate second-opinion consultation, particularly for imaging studies, with an experienced sarcoma specialist. Musculoskeletal oncologists may be able to help further reduce the rates of malpractice litigation in sarcoma care by helping patients understand that delays in diagnosis do not necessarily constitute medical malpractice.

Breast Cancer Litigation in the 21st Century.

BACKGROUND: Approximately 15% of general surgeons practicing in the United States face a medical malpractice lawsuit each year. This study aimed to determine the reasons for litigation for breast cancer care during the past 17 years by reviewing a public legal database. METHODS: The LexisNexis legal database was queried using a comprehensive list of terms related to breast cancer, identifying all cases from 2000 to 2017. Data were abstracted, and descriptive analyses were performed. RESULTS: The study identified 264 cases of litigation pertaining to breast cancer care. Delay in breast cancer diagnosis was the most common reason for litigation (n = 156, 59.1%), followed by improperly performed procedures (n = 26, 9.8%). The medical specialties most frequently named in lawsuits as primary defendants were radiology (n = 76, 28.8%), general surgery (n = 74, 28%), and primary care (n = 52, 19.7%). The verdict favored the defendant in 145 cases (54.9%) and the plantiff in 60 cases (22.7%). In 59 cases (22.3%), a settlement was reached out of court. The median plaintiff verdict payouts ($1,485,000) were greater than the settlement payouts ($862,500) (p = 0.04). CONCLUSION: Failure to diagnose breast cancer in a timely manner was the most common reason for litigation related to breast cancer care in the United States. General surgery was the second most common specialty named in the malpractice cases studied. Most cases were decided in favor of the defendant, but when the plaintiff received a payout, the amount often was substantial. Identifying the most common reasons for litigation may help decrease this rate and improve the patient experience.

Inferior Vena Cava Filter Malpractice Litigation: Damned if You Do, Damned if You Don't.

BACKGROUND: The aim of this study was to analyze malpractice litigation trends and to better understand the causes and outcomes of suits involving inferior vena cava filters (IVCF) to prevent future litigation and improve physician education. METHODS: Jury verdict reviews from the Westlaw database from January 1, 2000, to December 31, 2015, were reviewed. The search term "inferior vena cava filter" was used to compile data on the demographics of the defendant, plaintiff, allegation, complication, and verdict. RESULTS: A total of 156 cases were identified. Duplicates and cases in which the IVCF was incidentally included were excluded from the analysis. Forty-nine cases involving either failure to place or a complication of IVCF placement were identified. Throughout the last 15 years, there has been increased number of jury verdicts toward IVCF. The most frequent defendants were internal medicine physicians (38%), vascular surgeons (19%), and cardiothoracic surgeons (12%). The most frequent claims were denied treatment or delay in treatment (in 35% of cases), negligent surgery (in 24% of cases), and failure to diagnose and treat complications (in 24% of cases). Of these, the most frequent specific claims were failure to place IVC filter (41%), implantation failure such as misplacement and/or misaligned implant (24%), erosion of IVC/retroperitoneal bleed (6%), and discontinuation of anticoagulation prematurely (6%). Seventeen cases (35%) were found for the plaintiff, with median awards worth of $1,092,500. In the 21 cases where pulmonary embolism (PE) was involved (43% of cases), 19 were fatal (90%). Of the fatal PE cases, 8 cases ended with verdicts in favor of the plaintiff (42%). Both nonfatal PE cases were won by the defense. CONCLUSIONS: IVCF placement with subsequent PE and death results in verdicts that favor the plaintiffs. This study emphasizes that adequate and transparent communication regarding preoperative planning, decision for IVCF placement, and informed consent may reduce the frequency of litigation. Public awareness of complications related to the placement of IVCF is increasing largely and spurned by aggressive advertising and marketing by plaintiff attorneys. Conditions for which IVCF placement is contemplated carry significant risk of malpractice litigation.

Analysis of 11 years of clinical negligence claims in esophagogastric cancer in England.

In the National Health Service (NHS), clinical negligence claims and associated compensations are constantly rising. The aim of this study is to identify the size, trends, and causes of litigations claims in relation to esophagogastric (EG) cancer in the NHS. Data requests were submitted to the NHS Litigation Authority (NHSLA) for the period of January 2003 to December 2013. Data were reviewed, categorized clinically, and analyzed in terms of causes and costs behind claims. In this time period, there were 163 claims identified from the NHSLA database. Ninety-five (58.3%) claims were successful with a pay out of £6.25 million. An increasing overall claim frequency and success rate were found over the last few years. Majority of the claims were from gastric cancer 84 (88.4%). The commonest cause of complaint in successful claims was delay or failure in diagnosis (21.1%) and treatment (17.9%). There were only 10.5% successful intraoperative claims, of which 50% were due to unnecessary or additional procedures. The frequency and success rates of malpractice claims in EG cancer are rising. The failure or delay in diagnosing and treatment in EG malignancy are the common cause for successful litigation claims. The findings further reinforce the need to improve early diagnosis.

Delayed diagnosis in primary care-The main cause of sarcoma litigation in the United Kingdom.

BACKGROUND: Poor awareness and knowledge of lumps and bumps can impact on patient outcomes and survival. Late referrals or false reassurance may lead to litigation proceedings. The aim of this study was to identify the litigation cost in sarcoma care and identify areas for improvement. METHOD: Orthopaedic litigation between 1995-2010 in England and Wales was obtained from the National Health Service Litigation Authority. Litigation specifically relating to sarcoma in the extremities was identified. Causation, compensation fee, cost of legal defense, and compensation were analyzed. RESULTS: There were 52 litigation claims. Negligence was proven in 71% (n = 37) of cases. The total cost was £4.4 million (mean of £84,000/case). The mean compensation award was £92,000 (range £650-£978,000) and the mean defense cost was £22,000 (range £0-£102,000). Delayed diagnosis accounted for 89% of cases (n = 48). Negligence following diagnosis was infrequent; inappropriate treatment (n = 2), failure to recognize complications of surgery (n = 2), intra-operative problems (n = 1), failure to refer to a specialist unit after a "whoops procedure" (n = 1). CONCLUSIONS: Once the patient is within the specialist sarcoma unit, there is a very low rate of litigation. Efforts to reduce litigation in sarcoma treatment should focus on early diagnosis and raising awareness of sarcomas. J. Surg. Oncol. 2016;113:361-363. © 2016 Wiley Periodicals, Inc.

The Right to Sue for Non-Communication or Delay in the Diagnosis of Neurodegenerative Diseases.

Delay in diagnosis of neurodegenerative diseases can be caused by clinical factors such as the lack of recognition of symptomatology as attributable to the disease or confusion of symptoms with those from other conditions. A number of studies have shown that psychiatric symptoms may precede motor symptoms and the ultimate diagnosis, in substantial part because they may mirror symptoms arising from other aetiologies. Any delay in diagnosis of relatives with neurodegenerative diseases and failure to communicate such a diagnosis can have very significant adverse effects for provision of treatment and for decisions made which can result in the passing on of the disease. In turn such decisions made in the absence of information can cause significant distress which in its own right can be counter-therapeutic. This article reviews two important decisions made by the High Court of England and Wales in 2015 and 2016, ABC v St George's Healthcare NHS Trust [2015] EWHC 1394 and Smith v University of Leicester NHS Trust [2016] EWHC 817, in which rights to sue were denied in the scenarios of failure to disclose neurodegenerative heritable symptomatology to relatives. In both decisions it was decided that no negligence was engaged in by a failure on the part of health professionals to disclose their knowledge of a person's neurodegenerative condition to relatives of the person, in spite of the fact that failure to do so would foreseeably cause harm. This editorial argues that so doctrinaire an approach to the ethical obligation of confidentiality is counter-therapeutic and needs to be reconsidered.

[How relevant is the risk of losing evidence due to delayed blood sampling? Conclusions from the evaluation of blood analysis results]. / Wie relevant ist die Gefahr des Beweismittel- verlustes bei verzögerter Blutentnahme? Schlussfolgerungen aus der Auswertung von Blutuntersuchungsergebnissen.

If the order of a judge to take a blood sample can only be obtained with a marked delay after the incident, evidence proving that a suspect had been driving under the influence of alcohol or drugs of abuse may be lost. The evaluation of blood analysis results from the Institute of Legal Medicine in Frankfurt/Main from the years 2012-2014 shows that in 1.6 to 11.6% of positive cases, the drug concentrations were near the legal limits (20.2% of alcohol-positive and 7.5% of illicit drugs-positive samples). A loss of evidence can thus be expected in a large number of cases when the time between the police check of a driver and the collection of a blood sample increases. Blood concentrations of alcohol and drugs of abuse, especially tetrahydrocannabinol, cocaine, methamphetamine, and morphine, may already have dropped significantly after a delay of only half an hour. These delays are typically due to the time elapsing until the order to take a blood sample has been obtained from a judge and a medical doctor becomes available and arrives at the police station to draw a blood sample. The recommendation of medicolegal experts is to keep the time between police check of a suspect and blood sampling as short as possible. In routine cases, a realistic maximum of one hour should not be exceeded.

[Incomplete paraplegia after delayed diagnostics of motor function deficits. Severe malpractice?]. / Inkomplette Querschnittlähmung nach verzögerter Abklärung motorischer Ausfallserscheinungen. Schwerer Behandlungsfehler?

A 72-year-old female patient was transferred to a rehabilitation centre after surgical stabilization of a subtrochanteric femoral fracture. However, adequate mobilization was not possible there and 5 days after transfer deficits in the motor function of both lower extremities were documented for the first time and an initial paraplegia was diagnosed the following day by a neurologist. Magnetic resonance imaging (MRI) revealed the suspicion of an unstable fracture of the seventh thoracic vertebral body 8 days after the initial symptoms, which was confirmed by computed tomography after another 3 days. Surgical decompression and stabilization were performed at a department for neurosurgery 4 days later but incomplete paraplegia persisted permanently. The patient complained about insufficient diagnostic measures at the rehabilitation centre. The expert opinion concluded that it would have been mandatory to investigate the matter of the newly occurring neurological symptoms immediately but this had only been performed after undue delay, which had to be interpreted as a case of medical malpractice. The expert pointed out that it was not possible to provide clear evidence that emergent diagnosis and surgery would have enabled a significantly better outcome.The arbitration board ascertained a lack of examination and argued that prompt and adequate diagnostic measures would have revealed the relevant pathological finding and thus surgery would have been performed immediately. According to the reversal of evidence in favor of the patient it could be assumed that no permanent neurological damage existed when the first neurological symptoms occurred and that emergent surgery at least had the potential to prevent permanent paraplegia. This opinion of the arbitration board is supported by numerous references in the literature.

Medico-legal aspects of vertical root fractures in root filled teeth.

AIM: To analyse the medico-legal aspects of vertical root fracture (VRF) following root canal treatment (RCT). METHODOLOGY: A comprehensive search in a professional liability insurance database was conducted to retrospectively identify cases of VRF following RCT. The complaints were categorized as either financial risk bearing or financial nonrisk bearing, and related demographic, prosthetic and endodontic variables were analysed. RESULTS: Seventy-seven legal cases of patients with VRFs following RCT were identified. Most of the cases were either in premolars or in mandibular molar teeth (P<0.05). Poor-quality root filling was associated with an extended delay of diagnosis (P<0.05). The presence of a post significantly increased the financial risk assessment (P<0.05). CONCLUSIONS: Poor quality root fillings complicate the diagnosis of VRF, which in turn extends the time for achieving an accurate diagnosis and increasing the medico-legal risk. Premolar and mandibular molar teeth were more prone to medico-legal claims related to VRF following RCT. Post should be placed only when essential for additional core support to avoid medico-legal risk.

The High Court's lost chance in medical negligence: Tabet v Gett (2010) 240 CLR 537.

In 2010 the High Court of Australia in Tabet v Gett (2010) 240 CLR 537 determined an appeal in a medical negligence case concerning a six-year-old girl who had presented to a major paediatric hospital with symptoms over several weeks of headaches and vomiting after a recent history of chicken pox. The differential diagnosis was varicella, meningitis or encephalitis and two days later, after she deteriorated neurologically, she received a lumbar puncture. Three days later she suffered a seizure and irreversible brain damage. A CT scan performed at that point showed a brain tumour. As Australia does not have a no-fault system providing compensation to cover the long-term care required for such a condition, the girl (through her parents and lawyers) sued her treating physician. She alleged that, because a cerebral CT scan was not performed when clinically indicated after the diagnosis of meningitis or encephalitis and before the lumbar puncture, she had "lost the chance" to have her brain tumour treated before she sustained permanent brain damage. She succeeded at first instance, but lost on appeal. The High Court also rejected her claim, holding unanimously that there were no policy reasons to allow recovery of damages based on possible (less than 50%) "loss of a chance" of a better medical outcome. The court held that the law of torts in Australia required "all or nothing" proof that physical injury was caused or contributed to by a negligent party. The High Court, however, did not exclude loss of chance as forming the substance of a probable (greater than 50%) claim in medical negligence in some future case. In the meantime, patients injured in Australia as a result of possible medical negligence (particularly in the intractable difficult instances of late diagnosis) must face the injustice of the significant day-to-day care needs of victims being carried by family members and the taxpayer-funded public hospital system. The High Court in Tabet v Gett again provides evidence that, as currently constituted, it remains deaf to the injustice caused by State legislation excessively restricting the access to reasonable compensation by victims of medical negligence.