2017 HSC Section 2 - Practice Management

Original Investigation Research

Lasers and Malpractice

Figure 3. Alleged Factors Most Frequently Raised in Litigation

Table 1. Common Factors and Their Effect on Case Resolution

P Value for Median Payments

Cases Resolved With Payment, % (Median Payment, $)

Specific injuries

Perm Disf Burn Hypo Hyper Death

Factor a

Factor Present 56 (600 000) 59 (246 000) 33 (100 000) 55 (133 000) 48 (150 000)

Factor Absent 40 (103 000) 29 (150 000) 53 (175 000) 39 (200 000) 33 (158 000)

Noncutaneous

.09 .17 .95 .61

Consent

Unnecessary

Burn

jurisdictions include attorney-reported cases, 22,23 nonvolun- tary (ie, confidential) reports are available frommost jurisdic- tions and are labeled with such terms as confidential, anony- mous, or Jane Doe/John Doe . Along with the comprehensive detail available in most court reports, WestlawNext’s ease of use (for the laypersonwithout legal expertise)makes it awidely used resource within and beyond the legal community, and it has consequently been valuable in amultitude of medicolegal analyses. 21-48 We comprehensively examined each court rec- ord, recording plaintiff age and sex, specific issues put for- ward in litigation, and case outcomes. All data were collected in October 2013. Becausemonetary values did not follow a symmetric dis- tribution, jury awards and out-of-court settlementswere com- pared as appropriate using nonparametric statistical analysis with Mann-Whitney tests. The threshold for significance was set at P < .05, and SPSS software (version 20; IBM) was used for statistical analysis. Results Most cases included in this analysis involved female plain- tiffs (82%). The median plaintiff age was 46 years (range, in- fancy to 83 years). Of 34 cases ( Figure 2 ), 19 (56%) were re- solved with a defendant verdict (Figure 2A). Aggregate payments (including verdict awards and settlements) totaled $6.55million.Median jury-awardeddamageswere greater than out-of-court settlements ($200 000 vs $102 750), although this difference was not statistically significant ( P = .30). Derma- tologists were the most frequently named physician defen- dants (11 cases [32%]), and otolaryngologists and plastic surgeons were equally represented (6 cases each [18%]) (Figure 2B). In addition, 3 cases had litigation involving non- physician defendants. The most frequent procedures included laser treatment for age-related changes, followed by revision of acne marks and hair removal (Figure 2C). Nearly three-quarters of procedures were for cutaneous conditions, and the other most frequent allegations raised in litigation in- cluded sustaining permanent injury, disfigurement or scar- ring, inadequate informed consent, and undergoing unneces- sary or inappropriate procedures ( Figure 3 ). Procedures for noncutaneous conditions and cases with informed consent .84 a Consent refers to the presence or absence of allegations regarding perceived deficits in informed consent; pigmentation, allegations regarding dyspigmentation (hypopigmentation or hyperpigmentation); unnecessary , allegedly unnecessary or inappropriate procedure. Pigmentation

0 10 20 30 40 Cases, %

50 60 70 80

Other procedures and allegations

Cutaneous Consent Unnecessary CO 2 Additional Work Postoperative Qualification Delay

0 10 20 30 40 50 60 70 80

Cases, %

were also interested in examining the occurrence of litigation regarding noncosmetic causes. Our objectives were to exam- ine relevant cases for such factors as outcome, awards, and other allegations present in malpractice litigation, including both specific injuries as well as general considerations. For ex- ample, in addition to perceived deficits in informed consent, a previous analysis of negligence regarding cranial nerve in- jury found that the requirement of additional reparative pro- cedures as well as allegations that a procedure was unneces- sary or inappropriate were factors that may influence trial outcomes. 21 Methods We used the advanced search function of theWestlawNext da- tabase (Thomson Reuters) to identify jury verdict and settle- ment reports spanning from 1992 to October 2013, using the search terms illustrated in Figure 1 . This database draws from court proceedings progressing to the point of inclusion in pub- licly available federal and state court records. Although some carbon dioxide laser was explicitly mentioned (most others did not specify laser type); consent, alleged deficits in informed consent; cutaneous, cutaneous procedure; delay, delay in diagnosis of complication; Disf, poor cosmesis, disfigurement, or scarring; Hyper, hyperpigmentation; Hypo, hypopigmen- tation; Perm, permanent injury; postoperative, postoperative negligence; qualification, defendant allegedly not qualified to perform procedure; unnecessary, unnecessary or inappropriate procedure; and work, employment or income affected by injury. Top panel depicts specific alleged injuries; bottom panel, types of procedures and allegations not regarding specific injuries. Additional indicates additional procedures required because of adverse event; CO 2 , cases in which use of a

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