2017 HSC Section 2 - Practice Management

Otolaryngology–Head and Neck Surgery 152(3)

claims. However, these claims resulted in 70.3% of the total indemnity compensation. Of all the operative claims against otolaryngologists between 1985 and 2005, 34.5% involved procedures on the nose and sinuses. This study also pointed out that about 16% of the claims against otolaryngologists for all procedures involved informed consent allegations. 16 In Lynn-Macrae et al, 18 the electronic legal database LexisNexis was used to search all reported United States federal and state civil trials over a 14-year period in which malpractice associated with ESS was alleged. Results of this analysis of 41 cases showed that negligent technique (76%) was the majority reason for malpractice suits, followed by lack of informed consent (37%), unnecessary surgery (27%), failure to diagnose (7%), and wrongful death (5%). Chronic sinusitis (73%) was the most common indication for surgery. CSF leak (24%) was the most common injury caused by surgery, followed by diplopia (17%), brain damage (15%), atrophic rhinitis (15%), and anosmia (15%). Fifty-six percent of the cases were ruled in favor of the defendant and 41% for the plaintiff. The median plaintiff award was $410,239. The highest monetary award was for intractable pain, $1,487,000 more than the highest award for wrongful death. 18 In Lydiatt and Sewall, 15 the Westlaw legal database was searched for all jury verdict reports involving sinonasal dis- ease treatment by all specialties from 1988 to 2005. This search rendered 152 cases. Defendants prevailed in 62% of cases, while plaintiffs received a jury award in 23% and a settlement in 15% of cases. The median plaintiff award (jury awards and settlements) was $575,000. In this study, younger patients prevailed at a higher rate that did older patients (50% vs 35%), and men had a higher median award than did women ($1,000,000 vs $314,000). The most common claims were related to ESS, followed by sinonasal cancer and misdiagnosis. The most common complications included CSF leak (35%), orbital trauma (24%), and anos- mia (19%). Lack of informed consent was claimed in 26% of the ESS cases, with plaintiffs prevailing in 36% of these cases. Patients with cancer received the highest median award, at $1.5 million. 15 The present study of cases from 2004 to 2013 identified similar trends as previous studies when looking at both medical and surgical management of sinonasal disease by otolaryngologists. It differs from previous studies that looked at multispecialty management of sinonasal disease 15 and exclusively ESS malpractice. 18 Negligent technique (38%) continues to be the most common type of malpractice in this area, and informed consent (27%) continues to be a significant contribution to the litigation landscape in sinona- sal disease. CSF leak, meningitis, nasal obstruction, and visual impairment were the most common alleged injuries after sinonasal surgery. Fifteen percent of the cases were wrongful death suits, with 2 cases involving failure to diag- nose sinonasal cancer and 1 case involving perioperative pneumonia leading to respiratory failure. The mean award of $225,000 and mean settlement of $212,500 is less than that found in previous studies.

Table 2. Alleged Injury.

Alleged Injury

No. of Cases

Cerebrospinal fluid leak

4 4 3 3 3 2 2 2 1 1 1 1 1 1 1

Death

Meningitis

Visual impairment Nasal obstruction

Headache

Recirculation

Anoxic brain injury Orbital hematoma

Bleeding Infection Anosmia

Burning mouth syndrome

Foreign body in abdominal fat graft site

Need for further surgery

the defendant included 2 cases of postsurgical anoxic brain injury and a postoperative infection. In 4 cases, the outcomes were unknown. These included allegations of death, burning mouth syndrome, and 2 cases of CSF leak and meningitis. Discussion All physicians should at least be aware of common legal terms and the duties that both a plaintiff and a defendant have in a medical malpractice case. To prevail on a medical malpractice claim, a party is required to establish 4 ele- ments: (1) a duty by the physician to act according to a cer- tain standard of care, (2) a breach of the applicable standard of care, (3) injury or harm to the plaintiff, and (4) a causal connection between the breach of the applicable standard of care and the injury or harm. In addition, causation must be established by expert testimony to a reasonable degree of medical certainty. A handful of studies have been conducted on the topic of medical malpractice and sinonasal disease using different legal or insurance databases. In Dawson et al, 16 the 2006 Physician Insurers Association of America (PIAA) data- sharing report and the 2006 PIAA Risk Management Report– Otorhinolaryngology were searched for claims referable to the nose, nasal chamber, and paranasal sinuses. This analysis showed that the most frequent malpractice claim associated with a claim against otolaryngologists between 1985 and 2005 was ‘‘improper performance.’’ 17 Operative procedures involving the nose, nasal cavity, and paranasal sinuses were the most frequent conditions or diag- noses associated with improper performance. This repre- sented 64.25% of the total indemnity paid under this classification of claims between 1985 and 2005. The top 3 most prevalent claims against otolaryngologists involved the diagnoses sinusitis, deviated nasal septum, and diseases of the upper respiratory tract, accounting for 51% of the

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