2017 HSC Section 2 - Practice Management

Winford et al

of litigation in sinonasal disease treatment, understand the legal grounds where they are most vulnerable, promote a safer prac- tice, and potentially improve patient care. Methods Two computerized legal databases (Westlaw, Thomas Reuters, New York, New York; LexisNexis, a division of Reed Elsevier, Inc, Amsterdam, the Netherlands) were searched for the term medical malpractice in conjunction with several terms dealing with the practice of otolaryngol- ogy and sinonasal disease for the past 10 years (2004-2013). Terms searched included anosmia, cerebrospinal fluid leak, deviated septum, epistaxis, ethmoidectomy, fungal sinusitis, maxillary antrostomy, nasal cancer, nasal obstruction, nasal polyp, orbital injury, paranasal sinuses, rhinologist, septo- plasty, sinus surgery, sinusitis, sinusotomy, sphenoidostomy, turbinate reduction , and vision loss . Westlaw and LexisNexis are similar databases requiring a subscription that contain jury verdict reports from all 50 states. These reports are submitted voluntarily by attorneys and typically contain the jurisdiction, names of attorneys and expert wit- nesses, demographic information, verdict, award amount, and summary of the case. The Westlaw database has previ- ously been used in multiple otolaryngology medical mal- practice analyses including otology, 6 hearing loss, 7 corticosteroid use, 8 facial plastic surgery, 9 facial nerve paralysis, 10 iatrogenic tracheal stenosis, 11 iatrogenic cranial nerve injury, 12 iatrogenic cerebrospinal fluid (CSF) leak, 13 iatrogenic orbital injury, 14 and sinonasal disease. 15 Because no protected patient information was used, no institutional review board review was sought. Data extracted from the cases included plaintiff gender, present- ing complaint, practice setting, type of malpractice alleged, alleged injury, verdict, and amount of award or settlement rewarded. Results The search identified 26 cases involving sinonasal disease and otolaryngologists from 2004 to 2013. LexisNexis pro- duced 2 additional cases not found in the Westlaw database. The cases involved 19 males and 7 females. Eighteen cases were in the private practice setting, and 6 involved an aca- demic medical center. Of the 26 cases, 15 had complete results, and the verdict or outcome was known in 18 of the cases. Defendants prevailed in 72% (13/18) of these cases and the plaintiff prevailed in 16% (3/18). Of the 3 cases won by the plaintiff, 2 had published award amounts of $300,000 and $150,000. All 3 of these cases were in the pri- vate practice setting. Settlement was reached in 2 cases with a monetary award of $250,000 and $175,000. In the 8 cases in which verdicts or outcomes were not published, initial summary judgment was denied. Summary judgment is a court order ruling that no factual issues remain to be tried and therefore a complaint can be decided on certain facts without a trial. The most common presenting complaint or reason for treatment was chronic sinusitis (42%) followed by nasal

Table 1. Presenting Complaint.

Presenting Complaint

No. of Cases

Chronic sinusitis Nasal obstruction

11

7 3 2 1 1 1

Sleep apnea Headache

Acute sinusitis Nasal polyps

Allergic fungal sinusitis

Figure 1. Type of malpractice.

obstruction (27%; Table 1 ). The type of malpractice was divided into 7 categories. The most common allegation was negligent technique, followed by lack of informed consent. Other allegations included failure of surgery, wrongful death, surgery not indicated, failure to diagnose, and injury unrelated to surgery ( Figure 1 ). Four cases alleged CSF leak, and 4 cases alleged wrongful death. Other alleged inju- ries included visual impairment, meningitis, nasal obstruc- tion, headache, recirculation, anoxic brain injury, bleeding, orbital hematoma, infection, anosmia, burning mouth syn- drome, foreign body in abdominal fat graft site, and need for additional surgery ( Table 2 ). The alleged injuries in the wrongful death cases included carotid artery injury, respiratory failure due to postsurgical pneumonia, and 2 cases involving failure to diagnose sino- nasal cancer. The carotid artery injury case was won by the plaintiff, and the award amount was not published. The respiratory failure case and 1 of the failure-to-diagnose sino- nasal cancer cases ended with a defendant verdict. The other failure-to-diagnose case had initial summary judgment denied, and the further outcome of the case was not pub- lished. The 2 other cases won by the plaintiff involved the same physician, and both cases alleged failure of surgery, recirculation, and medical fraud. There were 7 cases that alleged lack of informed consent. Four of these cases were in private practice, and 3 were in an academic setting. Three cases were won by the defendant, and 4 cases had initial summary judgment denied and the outcome was not published. Alleged injury in cases won by

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