BALTIMORE – An and intraoperative damage to surrounding structures was the leading reason for such lawsuits, according to research presented at the annual meeting of the American Gastrointestinal and Endoscopic Surgeons.
The purpose of the study was to identify leading causes of litigation for hernia repair as the volume of hernia repairs in the United States increases with a trend toward minimally invasive and robotic surgery, said Asad Choudhry, MBBS, of the State University of New York, Syracuse.“In terms of the hernia itself, inguinal hernia operations were found to be the most common hernia procedure that led to pursuance of litigation, and laparoscopy was the most common type of procedure rather than open in terms of patients pursuing litigation.”
The study sampled the WestLawNext legal database for medical malpractice abdominal wall procedures, and evaluated 430 cases of abdominopelvic wall hernias that fit the study criteria – inguinal, femoral, ventral, umbilical, parastomal, spigelian, obturator, epigastric, incisional, paraumbilical, and pantaloon hernias, Dr. Choudhry said. Hiatal, diaphragmatic, sciatic, gluteal, and lumbar hernias were excluded. He noted that abdominal wall hernia have been reported to be the second most common abdominopelvic procedure performed in the United States after C-section, with more than 1 million procedures done annually (Surg Clin N Am. 2003;83:1045-51).
While most malpractice hernia cases were decided in favor of the defendant surgeon, settlements and cases with a jury verdict in favor of the plaintiff were costly. Dr. Choudhry cited awards of $6.8 million, $12 million, and $3 million in specific hernia cases.
“In terms of the type of repair itself, elective operations were more common, and mesh was used in approximately 27% of cases in which there was a defendant verdict and 18% of cases in which there was a plaintiff verdict,” he said.
For inguinal hernia, 61% of cases were decided for the defendant surgeon. With regards to type of procedure, laparoscopic surgery resulted in defendant verdicts in 31% of cases versus 23% for the plaintiff, and open operations resulted in a ruling favoring the defendant surgeon in 26% versus 15% for the plaintiff. (The remainder were lap-converted-to-open operations, with 2% for the defendant and 1% for the plaintiff.)
Mortality was a key determinant of verdict, Dr. Choudhry added. “Cases with no mortality were more likely of having an outcome in favor of the defendant surgeon.”
The researchers also looked at litigation arising from the phase of care – before, during, or after surgery. “In the preoperative time setting, delay or failure to diagnose or manage a hernia was the leading cause of malpractice,” Dr. Choudhry said. “These cases were mainly emergent patients presenting to the emergency department where the intervention was not performed in a timely manner and leading to some form of complication.”
In the intraoperative period, damage to surrounding structures was by far the leading cause of malpractice, but incomplete procedure or improper surgical technique and use of improper surgical materials also were significant causes in this period. Postoperatively, failure to timely detect and/or repair a surgical complication was the most common cause of litigation. “However, it’s important to note that persistent pain, such as nerve entrapment syndrome, is also noted in the postoperative time period as a cause of litigation,” he added.
The study also evaluated injury severity in the context of a claim outcome. “Most claims where there was an insignificant or minor injury were decided for the defendant surgeon,” Dr. Choudhry said. “But as you start moving higher on the injury scale toward death, these cases were more likely to favor the plaintiff, and that’s correlative because patients tend to sue more when there’s a more significant complication, such as when there’s a death of a family member.” In cases involving death, 41% resulted in a verdict for the defendant surgery, 35% in a plaintiff verdict, and 23% in a settlement, whereas in cases involving insignificant temporary injury, 90% were ruled for the defendant surgeon, with none going to settlement.
The research also found another mitigating factor in malpractice lawsuits: the number of lawyers in a state. “We noted that specific states such as California, New York, Texas, and Florida were bound to have a higher number of lawsuits per population, and this was correlative with the number of lawyers practicing within that state,” Dr. Choudhry said. New York led the nation with 46 cases, followed by California with 42, Florida with 27 ,and Texas and Pennsylvania with 17 each.
Session moderator Heather Logghe, MD, of Jefferson Medical College, Philadelphia, questioned Dr. Choudhry on how surgeons can improve their informed consent process to protect against potential litigation.
“The most important thing we can do is document and explain the risk, benefits, and alternatives, and use an inclusive informed consent that will allow the patients to have a complete understanding of the procedure that is to be done and the complications that may result,” he said. This process needs to be tailored to individual hospital systems. “This may allow for better documentation, and it may not decrease the number of malpractice lawsuits but it may decrease the outcomes not in favor of physicians.”
The researchers also identified trends in the broader context of medical malpractice. Citing data from the National Practitioner Data Bank, Dr. Choudhry noted that malpractice payouts have been increasing since 2012 after a steady 9-year decline. In addition, general surgeons are at greater risk than all but two other types of specialists – neurosurgeons and thoracic-cardiovascular surgeons (N Engl J Med. 2011;365:629-36). “Fifteen percent of general surgeons will be facing malpractice claims annually across the United States. Physicians in high-legal-risk specialties, such as the surgical specialties, are 99% likely to face a claim over their careers.”
The next step for the researchers is to use malpractice insurance data to study medical liability on a larger scale and identify methods physicians can use to improve patient care and mitigate risk, Dr. Choudhry said.
Dr. Choudhry had no relevant financial relationships to disclose.
SOURCE: Choudhry A et al. SAGES 2109, Abstract S104.