Malpractice Litigation in Cornea and Refractive Surgery: A Review of the WestLaw Database

From Operating Room to Courtroom: Analyzing Malpractice Trajectories in Cranial Neurosurgery

BACKGROUND AND OBJECTIVES

Nearly all neurosurgeons in the United States will be named defendants in a malpractice claim before retirement. We perform an assessment of national malpractice trends in cranial neurosurgery to inform neurosurgeons on current outcomes, trends over time, benchmarks for malpractice coverage needs, and ways to mitigate lawsuits.

METHODS

The Westlaw Edge and LexisNexis databases were searched to identify medical malpractice cases relating to open cranial surgery between 1987 and 2023. Extracted data included date of verdict, jurisdiction, outcome, details of sustained injuries, and any associated award/settlement figures.

RESULTS

Of 1550 cases analyzed, 252 were identified as malpractice claims arising from open cranial surgery. The median settlement amount was $950 000 and the average plaintiff ruling was $2 750 000. The highest plaintiff ruling resulted in an award of $28.1 million. Linear regression revealed no significant relationship between year and defendant win (P-value = .43). After adjusting for inflation, award value increased with time (P-value = .01). The most common cranial subspecialties were tumor (67 cases, 26.6%), vascular (54 cases, 21.4%), infection (23 cases, 9.1%), and trauma (23 cases, 9.1%). Perioperative complications was the most common litigation category (96 cases, 38.1%), followed by delayed treatment (40 cases, 15.9%), failure to diagnose (38 cases, 15.1%), and incorrect choice of procedure (29 cases, 11.5%). The states with most claims were New York (40 cases, 15.9%), California (24 cases, 9.5%), Florida (21 cases, 8.3%), and Pennsylvania (20 cases, 7.9%).

CONCLUSION

Although a stable number of cases were won by neurosurgeons, an increase in award sizes was observed in the 37-year period assessed. Perioperative complications and delayed treatment/diagnosis were key drivers of malpractice claims.

BCLA CLEAR Presbyopia: Management with corneal techniques

Corneal techniques for enhancing near and intermediate vision to correct presbyopia include surgical and contact lens treatment modalities. Broad approaches used independently or in combination include correcting one eye for distant and the other for near or intermediate vision, (termed monovision or mini-monovision depending on the degree of anisometropia) and/or extending the eye's depth of focus [1]. This report provides an overview of the evidence for the treatment profile, safety, and efficacy of the range of corneal techniques currently available for managing presbyopia. The visual needs and expectations of the patient, their ocular characteristics, and prior history of surgery are critical considerations for patient selection and preoperative evaluation. Contraindications to refractive surgery include unstable refraction, corneal abnormalities, inadequate corneal thickness for the proposed ablation depth, ocular and systemic co-morbidities, uncontrolled mental health issues and unrealistic patient expectations. Laser refractive options for monovision include surface/stromal ablation techniques and keratorefractive lenticule extraction. Alteration of spherical aberration and multifocal ablation profiles are the primary means for increasing ocular depth of focus, using surface and non-surface laser refractive techniques. Corneal inlays use either small aperture optics to increase depth of field or modify the anterior corneal curvature to induce corneal multifocality. Presbyopia correction by conductive keratoplasty involves application of radiofrequency energy to the mid-peripheral corneal stroma which leads to mid-peripheral corneal shrinkage, inducing central corneal steepening. Hyperopic orthokeratology lens fitting can induce spherical aberration and correct some level of presbyopia. Postoperative management, and consideration of potential complications, varies according to technique applied and the time to restore corneal stability, but a minimum of 3 months of follow-up is recommended after corneal refractive procedures. Ongoing follow-up is important in orthokeratology and longer-term follow-up may be required in the event of late complications following corneal inlay surgery.

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.

Malpractice Cases Arising From Telephone Based Telemedicine Triage in Ophthalmology

PURPOSE

To determine the allegation, precipitating medical issue, and outcome of telephone triage focused malpractice litigation among ophthalmologists.

METHODS

The WestLaw Edge database was reviewed using terms pertaining to ophthalmology and telemedicine. The search ranged from 4/7/30 to 1/25/22.

RESULTS

Of the 510 lawsuits, 3.5% (18/510) met inclusion criteria. 94.5% (17/18) alleged delays in evaluation and/or treatment. 61.1% (11/18) alleged incorrect diagnoses, 38.9% (7/18) claimed improper discussion of risks or informed consent, and 5.6% (1/18) alleged delayed referrals. The precipitating medical issues included retinal detachment in 33.3% (6/18) of cases, post-procedure and post-trauma endophthalmitis in 33.3% (6/18) of cases, ocular trauma without endophthalmitis in 22.2% (4/18) of cases, and bilateral acute retinal necrosis and allergic reactions each accounting for 5.6% (1/18) of cases.

CONCLUSION

Telephone triage creates potential malpractice litigation. Delay in in-person clinical evaluation and alleged failure to inform patients of possible irreversible vision loss may lead to potential malpractice litigation. We suggest offering the option of same day in person evaluation and informing the patient how delay may lead to irreversible vision loss.

Glaucoma-related malpractice litigation in the United States: A review of the WestLaw database

Purpose

Gaining understanding of glaucoma-related malpractice litigation may highlight ways to improve patient care and minimize risk of litigation. This study aims to analyze the outcomes and characteristics of glaucoma-related malpractice litigation.

Materials and Methods

The Westlaw legal database (Thomson Reuters, New York, NY, USA) was used to identify cases regarding ‘malpractice’ AND ‘glaucoma’ or related terms. Cases were analyzed for characteristics such as alleged cause of malpractice, outcome, and demographics.

Results

The initial search terms yielded 498 results, 107 of which met further inclusion criteria. 38 (36%) were resolved via jury trial. Of these, verdicts in favor of the plaintiff were issued in 14 cases (34%), with median adjusted damages of $702,986. Of all 107 cases in the study reviewed, 65 (61%) resulted in verdicts in favor of the defendant. Ophthalmologists were named as defendants in 85% of the cases (with glaucoma specialists representing 7% of the ophthalmologists); optometrists in 24%. Sixty percent of the cases involved non-surgical treatment. The most common medical reasons for litigation were failure to diagnose (38%), and inappropriate/negligent treatment (36%). The most commonly litigated surgical procedures were cataract surgery (48%) and iridotomy/iridectomy (19%).

Conclusion

Glaucoma-malpractice litigation has increased, with medical mismanagement alleged in the majority of cases. Defendants are frequently successful in obtaining pre-trial dismissal, but the risk of liability increases in cases going to trial. A minority of cases involved glaucoma specialists. This historical analysis of glaucoma-related malpractice cases might provide perspective and aid physicians seeking to avoid litigation.

VISION-RELATED MALPRACTICE INVOLVING PRISONERS: Analysis of the Westlaw Database

PURPOSE

To characterize vision-related malpractice litigation involving prisoners.

METHODS

Retrospective legal database review using the Westlaw database was performed to identify vision-related malpractice lawsuits involving prisoners in the United States from 1914 to 2020. Main outcomes and measurements were allegations of malpractice, verdicts, and settlements.

RESULTS

Sixty-four vision-related malpractice lawsuits involving prisoners were identified. Mean defendant age was 49 years (range, 28-74 years). Fifty-seven percent of the defendants were ophthalmologists and 43% were optometrists. The cases were most commonly from the South and Midwest (n = 19 [30%] for each). Allegations of malpractice included inadequate medical care or treatment refusal (n = 21 [33%]), failure to treat fully leading to continued suffering (n = 18 [28%]), and delay in treatment or referral (n = 17 [27%]). Retina-related diagnoses were most common (n = 18 [28%]). Forty-six (72%) cases were closed, 14 (22%) were open, and four (6.3%) were partially closed. Only two (3.1%) cases were decided in favor of the plaintiff. The most common reason for an unsuccessful suit was lack of deliberate indifference by the eye care professional (n = 21 [46%]).

CONCLUSION

The most common reasons for vision-related malpractice brought forth by prisoners were inadequate or incomplete eye care and treatment refusal. Retina was the most commonly involved subspecialty. However, the success rate of these suits was extremely low.

Medical Malpractice Trends in Foot and Ankle Surgery

Medical malpractice lawsuits can place significant economic and psychologic burden on a provider. Orthopedic surgery is one of the most common subspecialties involved in malpractice claims. There is currently no study examining malpractice lawsuits within foot and ankle surgery. Accordingly, the purpose of this work is to examine trends in malpractice claims in foot and ankle surgery. The Westlaw legal database was queried for lawsuits pertaining to foot and ankle surgery from 2008 to 2018. Only cases involving medical malpractice were included for analysis. All available details pertaining to the cases were collected. This included plaintiff demographic and geographic data. Details regarding the cases were also collected such as anatomical location, pathology, complications, and case outcomes. Forty-nine malpractice lawsuits pertaining to foot and ankle were identified. Most plaintiffs in these cases were adult females, and the majority of cases occurred in the northeast (53.1%). The most common anatomical region involved in claims involved the forefoot (29%). The majority of these claims involved surgery (65%). Infection was the most common complication seen in claims (22%). The jury ruled in favor of the defendant surgeon in most cases (73%). This is the first study to examine trends in medical malpractice within foot and ankle surgery. Infection was the most frequent complication seen in claims and forefoot surgery was the most common anatomic location. A large portion of claims resulted after nonoperative treatment. A better understanding of the trends within malpractice claims is crucial to developing strategies for prevention.

Malpractice trends in shoulder and elbow surgery

BACKGROUND

Medical malpractice is a very common occurrence that many medical providers will have to face; approximately 17,000 medical malpractice cases are filed in the United States each year, and more than 99% of all surgeons are faced with at least 1 instance of malpractice litigation throughout their careers. Malpractice litigation also carries a major economic weight, with medical malpractice spending resulting in an aggregate expenditure of nearly $60 billion annually in the United States. Orthopedic surgery is one of the most common subspecialties involved in malpractice claims. Currently, there are no comprehensive studies examining malpractice lawsuits within shoulder and elbow surgery. Therefore, the purpose of this work is to examine trends in malpractice claims in shoulder and elbow surgery.

METHODS

The Westlaw online legal database was queried in order to identify state and federal jury verdicts and settlements pertaining to shoulder and elbow surgery from 2010-2020. Only cases involving medical malpractice in which an orthopedic shoulder and elbow surgeon was a named defendant were included for analysis. All available details pertaining to the cases were collected. This included plaintiff demographic and geographic data. Details regarding the cases were also collected, such as anatomic location, pathology, complications, and case outcomes.

RESULTS

Twenty-five malpractice lawsuits pertaining to orthopedic shoulder and elbow surgery were identified. Most plaintiffs in these cases were adult men, and the majority of cases were filed in the Southwest (28%) and Midwest (28%) regions of the United States. The most common anatomic region involved in claims was the rotator cuff (32%), followed by the glenohumeral joint (20%). The majority of these claims involved surgery (56%). Pain of mechanical nature was the most common complication seen in claims (56%). The jury ruled in favor of the defendant surgeon in most cases (80%).

DISCUSSION

This is the first study that comprehensively examines the full scope of orthopedic shoulder and elbow malpractice claims across the United States. The most common complaint that plaintiffs reported at the time of litigation was residual pain after treatment due to a mechanical etiology, followed by complaints of nerve damage. A large portion of claims resulted after nonoperative treatment. A better understanding of the trends within malpractice claims is crucial to developing strategies for prevention.

Medical malpractice in heart transplantation from 1994 to 2019

BACKGROUND

Heart transplantation is a unique clinical intervention because it involves two separate parties, the donor and the recipient. This increases the potential for the legal liability of heart teams involved with heart transplantation, but there is no research that exists to date that analyzes the etiology of medical malpractice litigations relating to heart transplantation.

METHODS

The Westlaw legal database was queried for all medical malpractice litigations concerning heart transplantation from 1994 to 2019 in the United States. Individual litigations were reviewed for inclusion, resulting in 41 included cases, and then analyzed for legal and clinical data. Statistical analyses were performed with the Fisher exact test and Mann-Whitney U tests.

RESULTS

The mean age of patients involved in these litigations was 38.88 years, with female patients being younger on average. Female patients received a significantly larger average award than male counterparts (p = .03). Alleged failure to diagnose was significantly associated with settlements (p = .047). An alleged failure to obtain informed consent as presented by the plaintiff was significantly associated with defendant verdicts (p = .03). Incidence of stroke and infection were each significantly associated with nondefendant verdicts (p = .02 and p = .02).

CONCLUSIONS

There should be an emphasis on documenting informed consent from all involved parties in heart transplantation to limit litigations filed against clinicians. As technologies and growing donor pools increase the prevalence of heart transplantation, clinicians would be well-served to be aware of legally tenable practices that will allow them to adopt a higher transplant volume without simultaneously adopting added legal exposure.

A review of medical malpractice cases in congenital cardiac surgery in the Westlaw database in the United States from 1994 to 2019

BACKGROUND

Medical malpractice litigations are common for cardiac surgeons, and congenital cardiac surgeons are uniquely held accountable by patients, who are minors, and their families. Therefore, it is imperative for physicians to be cognizant of clinically effective and legally tenable practices.

METHODS

The Westlaw legal research service was utilized to collect medical malpractice litigations from 1994 to 2019 pertaining to congenital cardiac surgery, inclusive, in the United States. Court documents were manually screened, with 177 litigations satisfying criteria for inclusion. Data collection included patient demographics, verdict and litigation characteristics, and clinical data. Fisher's exact test was used to assess the significance of association.

RESULTS

Across the 177 litigations, 44% had defendant verdicts, 30% had plaintiff verdicts, and 26% had settlements. The average plaintiff award was $9,363,710, and the average settlement was $4,141,825. Patient mortality occurred in 87 cases (49.2%), and wrongful death claims were argued in 71 cases (40%). The most common reason for litigation were procedural errors (79 cases, 45%). The most frequent clinical event was cardiac arrest (95 cases, 54%). California recorded the most litigations (34 cases, 19.2%). Defendant verdicts were significantly associated with cardiac arrest, procedural errors, and permanent neurological injury (p < .05).

CONCLUSIONS

Defendant's verdicts were more common in cases with patient mortality, which had lower average plaintiff awards and settlements, since future healthcare expenses are inapplicable to this cohort. Future litigations can be minimized with an emphasis on reducing procedural errors, treating and diagnosing patients timely, and monitoring patients sufficiently.

Malpractice Litigation in Ophthalmic Trauma

Objective

To report and analyze the causes and outcomes of malpractice litigation in ophthalmic trauma.

Methods

The Westlaw^® database was reviewed for ophthalmology litigation in the United States between 1930 and 2014. All ophthalmic trauma cases were included and compared to non-traumatic ophthalmology malpractice cases.

Results

Forty-four ophthalmic trauma cases were included. Of these cases, 90.9% of ophthalmic trauma plaintiffs were male compared to 54.8% of plaintiffs in ophthalmology as a whole (P=<0.001); 34.1% of cases involved minor plaintiffs compared to 6.4% in ophthalmology as a whole (P=<0.001). Cases involving minors were more likely to be resolved in favor of the plaintiff than cases involving adult plaintiffs (53.3% vs 37.9%); however, this was not found to statistically significant (P=0.35). Overall, 54.5% of cases were resolved in favor of defendants; 40.9% of cases were resolved via jury trial with 50.0% resulting in payments to plaintiffs compared to the 29.6% rate of plaintiff verdicts in ophthalmology as a whole. Open globe injuries represented 61.4% of cases; 55.6% of these cases had intraocular foreign bodies and 37.0% developed endophthalmitis. Most cases (63.6%) alleged insufficient intervention. Of these cases, 31.8% of cases involved surgical or procedural claims, and 4.5% involved medical claims only.

Conclusion

Males and minors were overrepresented among plaintiffs in ocular trauma litigation. Most cases involved open globe injuries, often complicated by retained intraocular foreign bodies and endophthalmitis. Analysis of malpractice litigation in ophthalmic trauma calls attention to commonly litigated scenarios to improve clinical practice and to inform risk management.

Analysis of lawsuits related to diagnostic errors from point-of-care ultrasound in internal medicine, paediatrics, family medicine and critical care in the USA

PURPOSE

The purpose of this study is to identify the extent of diagnostic error lawsuits related to point-of-care ultrasound (POCUS) in internal medicine, paediatrics, family medicine and critical care, of which little is known.

METHODS

We conducted a retrospective review of the Westlaw legal database for indexed state and federal lawsuits involving the diagnostic use of POCUS in internal medicine, paediatrics, family medicine and critical care. Retrieved cases were reviewed independently by three physicians to identify cases relevant to our study objective. A lawyer secondarily reviewed any cases with discrepancies between the three reviewers.

RESULTS

Our search criteria returned 131 total cases. Ultrasound was mentioned in relation to the lawsuit claim in 70 of the cases returned. In these cases, the majority were formal ultrasounds performed and reviewed by the radiology department, echocardiography studies performed by cardiologists or obstetrical ultrasounds. There were no cases of internal medicine, paediatrics, family medicine or critical care physicians being subjected to adverse legal action for their diagnostic use of POCUS.

CONCLUSION

Our results suggest that concerns regarding the potential for lawsuits related to POCUS in the fields of internal medicine, paediatrics, family medicine and critical care are not substantiated by indexed state and federal filed lawsuits.

Malpractice Litigation in Vitreoretinal Surgery and Medical Retina

BACKGROUND AND OBJECTIVE

To report and analyze the causes and outcomes of vitreoretinal surgery and medical retina malpractice litigation.

PATIENTS AND METHODS

The WestLaw database was reviewed for all vitreoretinal malpractice litigation in the United States between 1930 and 2014.

RESULTS

One hundred forty-two retina cases were included. Overall, 64.1% of cases were resolved in favor of defendants. Eighty-three (58.5%) cases were resolved via jury trial, 30.1% of which were associated with plaintiff verdicts with mean adjusted jury award of $5,222,894 (median, $691,974). Eight cases (5.6%) resulted in settlements with mean adjusted indemnity of $726,003 (median: $437,165). Jury awards were higher than settlement awards (P = .04). Commonly litigated scenarios included retinal detachment (46.5%) and retinopathy of prematurity (9.2%).

CONCLUSIONS

The complexity of treating vitreoretinal problems and the high potential for vision loss inherent in many diagnoses make treating retinal problems high-risk. Many cases in this series resulted in multi-million-dollar plaintiff awards. [Ophthalmic Surg Lasers Imaging Retina. 2020;51:272-278.].

Medical Malpractice Litigation Following Primary Total Joint Arthroplasty: A Comprehensive, Nationwide Analysis of the Past Decade

BACKGROUND

The purpose of this study is to (1) characterize the most common reasons of medical malpractice litigation against adult reconstruction surgeons and (2) report on the outcomes of these lawsuits.

METHODS

The Westlaw legal research database was queried for cases between 2008 and 2018 related to total hip and knee arthroplasty (THA and TKA) in the United States. Causes of the lawsuit, patient characteristics, demographics, state/outcome of verdict or settlement, and indemnity payments were noted.

RESULTS

A total of 148 records (81 females [55%], 67 males [45%]; 83 TKAs [56%], 65 THAs [44%]) were included in the final analysis. For all patients, infection was the leading cause for malpractice litigation (22%) followed by nerve injury (20%). For TKA, infection was the most common cause of lawsuit (33%). In THA cases, nerve injury was the most common reason for lawsuit (38%), followed by leg-length discrepancy (26%). Procedural errors were alleged in 72% of cases, while diagnostic and post-surgical errors were cited in 55% and 32% of cases. A defense verdict occurred in 74% of cases, plaintiff verdict in 21%, and parties settled in 5%.

CONCLUSION

Infection and nerve injury were the most common reasons for litigation in TKA and THA, respectively. The most likely outcome of these lawsuits was a jury verdict in favor of the surgeon. Regardless, surgeons should be cognizant of the potential for lawsuit due to these complications and should ensure they inform patients of these potential complications of TJA preoperatively.

[Corneal refractive surgery despite systemic diseases?]

According to the literature there are a large number of potential systemic contraindications for corneal refractive surgery. In cases with relative contraindications, surgery should be performed only after weighing up the individual risks and under controlled disease conditions; however, the "evidence" for many of these contraindications is based only on case reports or series, expert opinions or known complications in non-laser-assisted eye surgery. Randomized clinical trials are therefore required.

Malpractice Litigation in Brain Tumor Surgery: A 31-Year Analysis of Causative Factors in the United States from the Westlaw Database

BACKGROUND

Medical malpractice litigation is an issue of major concern in neurosurgery, with 19.1% of neurosurgeons facing a claim annually. Neurosurgery possesses the greatest risk of malpractice of any specialty, likely owing to the complex clinical environment and disease severity. In the present study, we have characterized such litigation to determine the common factors that compel plaintiffs to file these claims.

METHODS

WestLawNext, a prominent legal database, was used to identify all cases from 1985 to 2016 related to brain tumors. A total of 225 cases were identified, and each was analyzed for the cause of litigation (multiple causes were permitted). Because many had >1 ground for litigation, the reported percentages were based on the total counts of litigation rather than the number of cases. Additional information was collected from each case, including location, tumor type, and physician specialty.

RESULTS

The cases were distributed across 36 states and U.S. territories: California (n = 42; 20%) and New York (n = 28; 13%) had the greatest number of cases. The top reasons for litigation were failure to diagnose (n = 109; 28%), failure to treat (n = 72; 18%), procedural error (n = 63; 16%), and failure to refer for diagnostic tests (n = 55; 14%). The most common diagnoses included pituitary adenoma (n = 26; 12%), acoustic neuroma (n = 27; 12%), and meningioma (n = 23; 10%).

CONCLUSIONS

Malpractice litigation contributes to high overhead and physician burnout and escalates the cost of patient care. We found that benign brain tumors were the most common in litigation and that surgical issues accounted for only a small percentage.