2017 HSC Section 2 - Practice Management

allegations had higher median payments (

Table 1

), although

these differences did not reach statistical significance, possi-

bly because there were too few overall cases.

Among cases with otolaryngologists as defendants, all but

1 were exclusively for noncutaneous conditions, and 1 was a

combined rhinologic procedure alongwith laser resurfacing for

rosacea; other factors in caseswithdefendants confirmed to be

otolaryngologists are illustrated in

Table 2

. Cases resolvedwith

a plaintiff verdict are detailed in

Table 3

, and informed consent

allegations and sustaining allegedly permanent injuries were

present in a significant proportion of these cases. In addition,

Table 4

and

Table 5

list factors in cutaneous cases performed

for vascular lesions or other aesthetic reasons, respectively.

Discussion

Our examination reinforces findings comprehensively de-

tailed by Jalian et al,

because both analyses noted the pres-

ence of similar issues raised in malpractice litigation, includ-

ing burns, scars and disfigurement, and pigmentation

abnormalities. As otolaryngologists, wewere interested in fur-

ther focusing analysis on the use of lasers in the head andneck.

The 15 cases in the current analysis resolved with an out-of-

court settlement or a plaintiff verdict with a median award of

$150 000, less than the median indemnity ($350 000) re-

ported by Jalian et al.

This refutes our hypothesis that mal-

practice involving the head and neck would result in defini-

tively higher payments owing to the close proximity of critical

structures and a consequently smaller “margin for error.” The

reasons for this discrepancy are unclear; some of the main dif-

ferences between these analyseswere that theprior analysis in-

cluded far more hair removal cases (63 cases) and numerous

cases involving tattoo removal. Another important consider-

ationwas that weweremost interested inmedical malpractice

and thus restricted our study to cases ofmedical negligence; in

other words, we did not include cases dealing exclusivelywith

product liabilityor deficientmedical devicedesign. Prior analy-

ses of facial aesthetic procedures have noted that product li-

ability claims against manufacturers occur with regularity.

11,49

Only 3 cases involvednonphysicianoperators beingnamed

as codefendants, a smaller proportion than reported by Jalian

et al.

Despite the unclear effect of nonphysician operators on

our findings, there is a real potential for physicians tobenamed

as codefendants for acts committed by nonphysician opera-

tors under their supervision, as noted in our analysis and in

prior studies. In a focused examination of laser litigation as-

sociated with nonphysician operators, Jalian et al

esti-

mated that nearly one-thirdof litigation analyzed included this

scenario. This reinforces the importance of close supervi-

sion, knowledge of state laws with regard to this practice, and

maximal caution in the employment of these operators.

During the past 2 decades, the use of lasers has increased

in a variety of otolaryngologic procedures and conditions. Ad-

vocates of lasers in rhinologic procedures, particularly for tur-

binate reduction, note a decreased bleeding risk,

and the use

of lasers has notably increased for management of laryngeal

lesions.

Moreover, success in several otologic procedures, in-

cluding revision stapedectomy, has increasedwhen lasers are

used.

Physicians inmultiple specialties, including otolaryngol-

ogy and facial plastic and reconstructive surgery, have also in-

creasinglyused lasers for cutaneous conditions, because amul-

titude of conditions that previouslynecessitatedmore invasive

operative intervention can now be managed with lasers.

52,53

Laser resurfacing has traditionally encompassed the use of car-

bon dioxide and erbium:YAG lasers, and recent develop-

ments have greatly expanded the timing available to treat un-

sightly scarring or other lesions, ranging from as early as an

initial injury to many years later.

Table 2. Cases With Alleged Intraoperative Negligence Involving Otolaryngologists

Patient

Age, y/

Sex

Award

(S/P), $

Procedure/Underlying

Condition

Postop-

erative

Unnecessary Consent Additional Cosmesis Perm Alleged Injury

1 665 000

(P)

Septoplasty/turbinate

reduction (laser) for nasal

obstruction and rosacea

Yes

Loss of skin/cartilage around

nose; disfigurement/scarring

M 850 000 (P) Laser UPPP and tonsil

(OSA)

Yes

Nasopharyngeal stenosis; failure

to address nasal septum

45/F

…

Septoplasty/turbinate

reduction (laser) for OSA

Yes

No No improvement in symptoms;

sinus symptoms developed; OSA

not correct diagnosis

45/M

…

Laser stapedectomy

(otosclerosis)

Yes

Cranial nerve VII paralysis;

diminished visual acuity and

depth perception in left eye;

hearing loss

64/F

…

Septoplasty/turbinate

reduction (laser) for

deviated septum nasal

symptoms

Yes

No KTP laser; postoperative urinary

retention/

ileus; did not consent to general

anesthesia

83/M 200 000 (P) Cancerous VC lesion

No Airway fire; inhalation injury;

death due to ARDS

Abbreviations: Additional, required additional surgery; ARDS, acute respiratory

distress syndrome; consent, alleged deficits in informed consent; cosmesis,

poor cosmesis (from disfigurement or scarring); KTP, potassium titanyl

phosphate; OSA, obstructive sleep apnea; P, plaintiff decision; perm,

permanent injury; postoperative, postoperative negligence; S/P, settlement or

plaintiff decision; unnecessary, unnecessary or inappropriate procedure; UPPP,

uvulopalatopharyngoplasty; VC, vocal cord.

Ages were not available for some patients.

Defendant decision.

Research

Original Investigation

Lasers and Malpractice

JAMA Facial Plastic Surgery

July/August 2014 Volume 16, Number 4

jamafacialplasticsurgery.com

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