The Laryngoscope C 2014 The American Laryngological, V
Rhinological and Otological Society, Inc.
Protecting the Most Vulnerable: Litigation From Pediatric Otolaryngologic Procedures and Conditions Christopher Rose, MD; Peter F. Svider, MD; Anthony Sheyn, MD; Lila N. Meadows, MHS; Jean Anderson Eloy, MD, FACS; James Coticchia, MD; Adam J. Folbe, MD Objectives/Hypothesis: To identify allegations raised in litigation stemming from pediatric otolaryngologic procedures and conditions. Study Design: Retrospective analysis of a legal database. Methods: The authors reviewed jury verdict and settlement reports on the WestlawNext database from 1994 to 2013 for cases involving pediatric plaintiffs and alleged negligence in otolaryngologic procedures and conditions. Results: Of the 78 cases included, 52.6% were resolved with a payment; aggregate payments exceeded $69 million, and median jury-awarded damages and settlements were $874,190 and $250,000, respectively. Adenotonsillectomy was the most commonly litigated procedure. Otolaryngologists were defendants in 42 (53.8%) cases, with pediatricians and anesthesiologists the next most commonly named defendants. Forty-six (59.0%) cases involved alleged negligence in operative management, whereas other factors included permanent injury (44.9%), misdiagnosis/failure to diagnose in a timely manner (41.0%), death (35.9%), and requiring additional surgery. Airway-related complications and allegedly permanent injuries significantly increased the size of payments. Awards were highest in cases with plaintiffs at 1 to 5-years of age and lowest among children older than 10 years of age. Conclusions: Unique considerations specific to pediatric patients are involved in malpractice litigation, and damages awarded were considerable. By including the specific factors listed in this analysis in a comprehensive informed consent process, and recognizing concerns specific to this patient population, practitioners in multiple specialties may potentially reduce liability. Clear communication with parents is a critical component of this process. Key Words: Pediatric otolaryngology, medical malpractice, litigation, negligence, liability. Level of Evidence: NA Laryngoscope, 124:2161–2166, 2014
INTRODUCTION Challenges unique to pediatric pathologies make management of these patients significantly different from adults.1 The current socioeconomic and political climate has facilitated growing interest in analysis of healthcare costs. A portion of these costs, both direct and indirect, may relate to trends in litigation over the past several decades, most notably a rise in the practice of defensive medicine.2–7 The primary objective of our current analysis was to identify alleged factors raised in litigation stemming from pediatric otolaryngologic procedures and conditions, including detailing outcomes and
From the Department of Otolaryngology–Head and Neck Surgery (C.R., P.F.S., A.S., J.C., A.J.F.), Wayne State University School of Medicine, Detroit, Michigan; Francis King Carey School of Law (L.N.M.), University of Maryland, Baltimore, Maryland; Department of Otolaryngology–Head and Neck Surgery (J.A.E.), Department of Neurological Surgery (J.A.E.), and Center for Skull Base and Pituitary Surgery (J.A.E.), Rutgers New Jersey Medical School, Newark, New Jersey, U.S.A. Editor’s Note: This Manuscript was accepted for publication March 4, 2014. The authors have no funding, financial relationships, or conflicts of interest to disclose. Send correspondence to Peter F. Svider, MD, Department of Otolaryngology–Head and Neck Surgery, Wayne State University School of Medicine, 4201 St. Antoine, 5E-UHC, Detroit, MI 48201. E-mail: [email protected] DOI: 10.1002/lary.24663
Laryngoscope 124: September 2014
awards. Educating healthcare providers about specific issues involved in litigation may reveal specific risks that should be discussed with a patient’s guardian(s) in a comprehensive informed consent process with regard to operative cases, as well as emphasize potential pitfalls in nonoperative conditions. In addition to detailing outcomes and awards, our hope was that this analysis provided helpful information that may serve to minimize liability and advance patient safety.
MATERIALS AND METHODS In an attempt to include the greatest number of relevant cases, the authors used the terms detailed in Table I and searched the WestlawNext database (Thomson Reuters, New York, NY) for malpractice litigation resolved over the last 20 years. This national resource includes legal proceedings from all US states and territories. There were 674 jury verdict and settlement reports found using our initial search terms (Table I), and 50 (7.4%) of these cases relevant to otolaryngology involved pediatric patients. An additional 28 unique cases were included using our secondary search terms (Table I). Ultimately, we included 78 jury verdict and settlement reports describing cases with pediatric plaintiffs that involved otolaryngologic procedures and conditions, ranging from 1994 to 2013. The WestlawNext database encompasses cases that progress far enough for inclusion into publically available federal and state court records; these records are supplied to WestlawNext by a variety of commercial vendors, who vary by jurisdiction. Although some jurisdictions may
Rose et al.: Pediatric Otolaryngology Malpractice
2161
TABLE I. Search Terms Used in Combination With “Medical Malpractice”. Otolaryngologist*
Ear tube
Otolaryngology* ENT*
Hearing loss Sinusitis
Ear nose throat*
Nasal polyps
Ear, nose, and throat* Otitis
Bronchoscopy Esophagoscopy
External ear infection
Triple endoscopy
Middle ear infection Branchial cleft Hemangioma
Tracheostomy Tracheotomy Recurrent respiratory polyps
Croup Epiglottitis Tracheitis
Auditory canal atresia Cochlear Myringotomy
Subglottic stenosis Tracheal stenosis
Tympanostomy Sinus surgery
Laryngeal stenosis
Tonsillectomy
Laryngotracheal stenosis Laryngomalacia Tracheomalacia Laryngotracheal resection Pyriform aperture stenosis
Adenotonsillectomy Adenoidectomy Tonsillitis Choanal atresia Epistaxis
Initial search terms (*) yielded 674 trials and out-of-court settlements since 1994 that progressed far enough for inclusion into the publically available federal and state court records WestlawNext encompasses. Of these, 50 cases involved pediatric plaintiffs and regarded otolaryngologic procedures and conditions; 28 additional cases since 1994 were identified using the other search terms above. ENT 5ear, nose, and throat.
contain attorney-submitted court records,8,9 the majority also contain records in which litigating parties are identified through anonymous terms such as “confidential,” “John Doe,” and “anonymous.” Consequently, WestlawNext’s detailed description of cases has made it a widely used resource, and its value has been illustrated in myriad analyses of medicolegal topics.10–35 Each individual jury verdict and settlement report was examined by the authors for information including patient
demographics, alleged causes of negligence, outcomes, and awards. Additionally, for cases with otolaryngologist defendants, an internet search was undertaken in an effort to identify their level of training (i.e., fellowship trained or non–fellowship trained). In cases where defendant names were not anonymous, the otolaryngology defendant was searched in combination with the term “otolaryngology,” and sources including faculty profiles, private practice sites, and academic curriculum vitae were used in an attempt to determine education status. All data collection was completed in November 2013.
Statistical Analysis Mann-Whitney U tests were used for comparison of continuous variables, as continuous data appeared to be asymmetrically distributed. Fischer exact test was used for categorical comparisons. Threshold for significance was set at P
Rhinological and Otological Society, Inc.
Protecting the Most Vulnerable: Litigation From Pediatric Otolaryngologic Procedures and Conditions Christopher Rose, MD; Peter F. Svider, MD; Anthony Sheyn, MD; Lila N. Meadows, MHS; Jean Anderson Eloy, MD, FACS; James Coticchia, MD; Adam J. Folbe, MD Objectives/Hypothesis: To identify allegations raised in litigation stemming from pediatric otolaryngologic procedures and conditions. Study Design: Retrospective analysis of a legal database. Methods: The authors reviewed jury verdict and settlement reports on the WestlawNext database from 1994 to 2013 for cases involving pediatric plaintiffs and alleged negligence in otolaryngologic procedures and conditions. Results: Of the 78 cases included, 52.6% were resolved with a payment; aggregate payments exceeded $69 million, and median jury-awarded damages and settlements were $874,190 and $250,000, respectively. Adenotonsillectomy was the most commonly litigated procedure. Otolaryngologists were defendants in 42 (53.8%) cases, with pediatricians and anesthesiologists the next most commonly named defendants. Forty-six (59.0%) cases involved alleged negligence in operative management, whereas other factors included permanent injury (44.9%), misdiagnosis/failure to diagnose in a timely manner (41.0%), death (35.9%), and requiring additional surgery. Airway-related complications and allegedly permanent injuries significantly increased the size of payments. Awards were highest in cases with plaintiffs at 1 to 5-years of age and lowest among children older than 10 years of age. Conclusions: Unique considerations specific to pediatric patients are involved in malpractice litigation, and damages awarded were considerable. By including the specific factors listed in this analysis in a comprehensive informed consent process, and recognizing concerns specific to this patient population, practitioners in multiple specialties may potentially reduce liability. Clear communication with parents is a critical component of this process. Key Words: Pediatric otolaryngology, medical malpractice, litigation, negligence, liability. Level of Evidence: NA Laryngoscope, 124:2161–2166, 2014
INTRODUCTION Challenges unique to pediatric pathologies make management of these patients significantly different from adults.1 The current socioeconomic and political climate has facilitated growing interest in analysis of healthcare costs. A portion of these costs, both direct and indirect, may relate to trends in litigation over the past several decades, most notably a rise in the practice of defensive medicine.2–7 The primary objective of our current analysis was to identify alleged factors raised in litigation stemming from pediatric otolaryngologic procedures and conditions, including detailing outcomes and
From the Department of Otolaryngology–Head and Neck Surgery (C.R., P.F.S., A.S., J.C., A.J.F.), Wayne State University School of Medicine, Detroit, Michigan; Francis King Carey School of Law (L.N.M.), University of Maryland, Baltimore, Maryland; Department of Otolaryngology–Head and Neck Surgery (J.A.E.), Department of Neurological Surgery (J.A.E.), and Center for Skull Base and Pituitary Surgery (J.A.E.), Rutgers New Jersey Medical School, Newark, New Jersey, U.S.A. Editor’s Note: This Manuscript was accepted for publication March 4, 2014. The authors have no funding, financial relationships, or conflicts of interest to disclose. Send correspondence to Peter F. Svider, MD, Department of Otolaryngology–Head and Neck Surgery, Wayne State University School of Medicine, 4201 St. Antoine, 5E-UHC, Detroit, MI 48201. E-mail: [email protected] DOI: 10.1002/lary.24663
Laryngoscope 124: September 2014
awards. Educating healthcare providers about specific issues involved in litigation may reveal specific risks that should be discussed with a patient’s guardian(s) in a comprehensive informed consent process with regard to operative cases, as well as emphasize potential pitfalls in nonoperative conditions. In addition to detailing outcomes and awards, our hope was that this analysis provided helpful information that may serve to minimize liability and advance patient safety.
MATERIALS AND METHODS In an attempt to include the greatest number of relevant cases, the authors used the terms detailed in Table I and searched the WestlawNext database (Thomson Reuters, New York, NY) for malpractice litigation resolved over the last 20 years. This national resource includes legal proceedings from all US states and territories. There were 674 jury verdict and settlement reports found using our initial search terms (Table I), and 50 (7.4%) of these cases relevant to otolaryngology involved pediatric patients. An additional 28 unique cases were included using our secondary search terms (Table I). Ultimately, we included 78 jury verdict and settlement reports describing cases with pediatric plaintiffs that involved otolaryngologic procedures and conditions, ranging from 1994 to 2013. The WestlawNext database encompasses cases that progress far enough for inclusion into publically available federal and state court records; these records are supplied to WestlawNext by a variety of commercial vendors, who vary by jurisdiction. Although some jurisdictions may
Rose et al.: Pediatric Otolaryngology Malpractice
2161
TABLE I. Search Terms Used in Combination With “Medical Malpractice”. Otolaryngologist*
Ear tube
Otolaryngology* ENT*
Hearing loss Sinusitis
Ear nose throat*
Nasal polyps
Ear, nose, and throat* Otitis
Bronchoscopy Esophagoscopy
External ear infection
Triple endoscopy
Middle ear infection Branchial cleft Hemangioma
Tracheostomy Tracheotomy Recurrent respiratory polyps
Croup Epiglottitis Tracheitis
Auditory canal atresia Cochlear Myringotomy
Subglottic stenosis Tracheal stenosis
Tympanostomy Sinus surgery
Laryngeal stenosis
Tonsillectomy
Laryngotracheal stenosis Laryngomalacia Tracheomalacia Laryngotracheal resection Pyriform aperture stenosis
Adenotonsillectomy Adenoidectomy Tonsillitis Choanal atresia Epistaxis
Initial search terms (*) yielded 674 trials and out-of-court settlements since 1994 that progressed far enough for inclusion into the publically available federal and state court records WestlawNext encompasses. Of these, 50 cases involved pediatric plaintiffs and regarded otolaryngologic procedures and conditions; 28 additional cases since 1994 were identified using the other search terms above. ENT 5ear, nose, and throat.
contain attorney-submitted court records,8,9 the majority also contain records in which litigating parties are identified through anonymous terms such as “confidential,” “John Doe,” and “anonymous.” Consequently, WestlawNext’s detailed description of cases has made it a widely used resource, and its value has been illustrated in myriad analyses of medicolegal topics.10–35 Each individual jury verdict and settlement report was examined by the authors for information including patient
demographics, alleged causes of negligence, outcomes, and awards. Additionally, for cases with otolaryngologist defendants, an internet search was undertaken in an effort to identify their level of training (i.e., fellowship trained or non–fellowship trained). In cases where defendant names were not anonymous, the otolaryngology defendant was searched in combination with the term “otolaryngology,” and sources including faculty profiles, private practice sites, and academic curriculum vitae were used in an attempt to determine education status. All data collection was completed in November 2013.
Statistical Analysis Mann-Whitney U tests were used for comparison of continuous variables, as continuous data appeared to be asymmetrically distributed. Fischer exact test was used for categorical comparisons. Threshold for significance was set at P
