Medical Malpractice Primer for Practicing Interventional Radiologists

Malpractice litigation surrounding in vitro fertilization in the United States: a legal literature review

IMPORTANCE

Analysis of malpractice lawsuits that involve in vitro fertilization (IVF) can provide insight into the breadth of legal challenges faced by IVF clinics and the patient harms and financial consequences that can result from alleged errors in practice.

OBJECTIVE

We aimed to review malpractice litigations involving IVF and identify common themes in plaintiff allegations and defense arguments.

EVIDENCE REVIEW

We queried Nexis Uni, Westlaw, and CourtListener legal databases to collect records from malpractice litigations involving IVF. The nature of the cases, allegations, and outcomes were abstracted from court documents.

FINDINGS

Of the 447 cases identified in the query, 53 involved both malpractice and IVF, occurring between 1993 and 2022. Defendants included a reproductive endocrinologist in 19 (35.8%) cases, an academic institution in 17 (32.1%) cases, embryology personnel in 9 (17.0%) cases, and nursing staff in 2 (3.8%) cases. Twenty-four (45.3%) cases involved embryology errors (e.g., lost specimens and incorrect sperm donor), 11 (20.8%) preimplantation genetic testing errors (e.g., child born with genetic illness despite testing), 6 (11.3%) medical or surgical complications (e.g., ovarian hyperstimulation syndrome), 4 (7.5%) misdiagnoses (e.g., malignancy before cycle start), 3 (5.6%) misrepresentations of IVF outcomes, 2 (3.8%) medical eligibility screening issues (e.g., medical comorbidities in a gestational carrier), 2 (3.8%) confidentiality breaches, and 1 (1.9%) case of discrimination. The most common secondary claims were negligence (23 cases, 16.4% of all claims), breach of contract (13, 9.3%), lack of informed consent (11, 7.9%), and negligent infliction of emotional distress (11, 7.9%). Twenty-nine (54.7%) cases were decided in favor of the defending IVF clinic or provider, 13 (24.5%) cases were decided in favor of the plaintiff, and 11 (20.8%) involved ongoing proceedings. Financial awards ranged from $4171 to $14,975,000, with the largest monetary award resulting from a cryostorage accident class action lawsuit.

CONCLUSION

In vitro fertilization malpractice claims are varied, with the most common issues involving embryology laboratory processes and genetic testing errors. Some errors may be avoidable with increased vigilance and implementation of stringent laboratory and clinical guidelines. Understanding jurisdiction-specific legislation and court processes may also assist IVF providers in navigating the malpractice litigation process.

RELEVANCE

This comprehensive review of IVF litigation may have the potential to promote practices that protect both providers and patients.

Out-of-scope Cosmetic Surgery: A Review of Malpractice Lawsuits against Nonplastic Surgeons

The increasing patient demand for cosmetic surgeries and minimally invasive procedures has encouraged physicians without aesthetic surgery training accredited by the American Board of Medical Specialties to provide these services. This systematic review aims to determine the rate of out-of-scope practice in medical malpractice lawsuits involving cosmetic surgery or minimally invasive procedures performed by nonplastic surgeons.

Methods

Our systematic review of the Westlaw legal database from 1979 to 2022 included 64 malpractice cases. Inclusion criteria were cosmetic surgeries or minimally invasive procedures in medical malpractice lawsuits not involving board-certified plastic surgeons. Out-of-scope was defined using the procedural competencies established by the American Council for Graduate Medical Education, the Commission on Dental Accreditation, and the Council of Podiatric Medical Education. Data on legal proceedings, provider credentials and board certification, surgical interventions, and legal outcomes were collected.

Results

The majority of malpractice cases involving cosmetic surgeries or minimally invasive procedures occurred when providers were practicing out of scope (N = 34; 55.7%). The verdict was ruled in favor of the plaintiff (patient) in 34.4% of cases. Out-of-scope practice occurred most in family/internal medicine, no board certification, and obstetrics/gynecology (N = 4, N = 4, and N = 3, respectively). The most common allegation was permanent injury or disfigurement (N = 21; 21.4%). Plastic surgeons provided expert testimony 44.0% of the time.

Conclusion

Our review of the Westlaw legal database suggests that the majority of nonplastic surgeon cosmetic malpractice cases may occur in the setting of out-of-scope practice.

A Review of Professional Liability in IR: Sweeping the Mines

Medical professional liability (MPL) is becoming a substantial issue in interventional radiology (IR), with both impact on health care costs and negative psychological effects on physicians. MPL presents special challenges within IR because of the field's complex and innovative therapies that are provided to a diverse group of patients and complicated by the off-label use of devices and drugs that is pervasive in the field. This review discusses the principles and practices to avoid and manage MPLs that are specific to the field of IR.

Outcomes of bellwether cases related to inferior vena cava filters in multidistrict litigations

OBJECTIVE

In the present study, we identified and reviewed the outcomes of bellwether cases related to inferior vena cava (IVC) filter multidistrict litigations (MDLs).

METHODS

The legal research database, LexisNexis (New York, NY), was used to identify all cases related to IVC filters. Cases unrelated to the MDLs were excluded. Court documents recording the proceedings for bellwether cases sent to jury trials were retrieved from the LexisNexis subsidiary, Law360. Data on plaintiffs, filter models, reported complications, filed claims, decision-making body, verdicts, and rewards were reviewed.

RESULTS

A total of 678 cases pertaining to IVC filters were found in the database, of which 12 were identified as bellwether cases for MDL. Of the 12, 2 (16.7%) were initially ruled in favor of the plaintiffs in jury trials, although the judgment for 1 of these was later vacated by a judge. The remaining 10 (83.3%) had been decided in favor of the manufacturers by judges and juries.

CONCLUSIONS

Verdicts in all bench trials were in favor of manufacturers, suggesting that judges perceived the presented complications by patients to be within the normal realm of the expected risk of IVC filter use. The findings from the present study have emphasized the treating physicians' legal responsibility to adequately warn patients of all the associated risks with IVC filters. The findings have also indicated that physicians can still be found liable in product liability cases directed at manufacturers. Physicians should continue to actively monitor patients to optimize the IVC retrieval windows.

Inferior Vena Cava Filter Litigation Review: An Analysis of Medicolegal Cases Pertaining to Inferior Vena Cava Filters

PURPOSE

To identify and analyze all medical malpractice and product liability lawsuits pertaining to inferior vena cava (IVC) filters published within a well-recognized legal research database.

MATERIALS AND METHODS

LexisNexis, a legal research database, was used to retrieve cases that mentioned harm from IVC filters, or lack thereof, as the cause for legal action. A total of 672 cases were analyzed for type of case (medical malpractice or product liability), filter model implanted, filter complications, court decisions, and settlement payments if any.

RESULTS

Of 95 analyzed cases, 20 (21.1%) were medical malpractice cases and 75 (78.9%) were product liability cases. C.R. Bard was the manufacturer associated with the most lawsuits (n = 41, 48.8%). The most litigious filters were the G2 filter from C.R. Bard (n = 17, 20.2%) and Greenfield filter from Boston Scientific (n = 17). The most common complications were IVC penetration (n = 26, 29.9%), filter migration (n = 26, 29.9%), filter fracture (n = 23, 26.4%), and tilt (n = 16, 18.4%). The number of product liability cases has increased from accounting for 25.0% (2 of 8) of filter lawsuits between 2000 and 2010 to 83.9% (73 of 87) during 2011-2020. Of the 20 medical malpractice claims, 9 (45%) were filed for failure to place a filter. One physician was found liable for filter-related complications by a state court in 2014.

CONCLUSIONS

The majority of recent IVC filter-related lawsuits are filed against manufacturers on the basis of product liability claims, with the main litigious filters being the G2 and Greenfield filters. Most cases resulted in rulings for physicians or manufacturers. Some were filed against physicians for filter-related complications or for failure to place an IVC filter.