2017 HSC Section 2 - Practice Management

the defendant included 2 cases of postsurgical anoxic brain

injury and a postoperative infection. In 4 cases, the outcomes

were unknown. These included allegations of death, burning

mouth syndrome, and 2 cases of CSF leak and meningitis.

Discussion

All physicians should at least be aware of common legal

terms and the duties that both a plaintiff and a defendant

have in a medical malpractice case. To prevail on a medical

malpractice claim, a party is required to establish 4 ele-

ments: (1) a duty by the physician to act according to a cer-

tain standard of care, (2) a breach of the applicable standard

of care, (3) injury or harm to the plaintiff, and (4) a causal

connection between the breach of the applicable standard of

care and the injury or harm. In addition, causation must be

established by expert testimony to a reasonable degree of

medical certainty.

A handful of studies have been conducted on the topic of

medical malpractice and sinonasal disease using different

legal or insurance databases. In Dawson et al,

the 2006

Physician Insurers Association of America (PIAA) data-

sharing report and the 2006 PIAA Risk Management

Report– Otorhinolaryngology were searched for claims

referable to the nose, nasal chamber, and paranasal sinuses.

This analysis showed that the most frequent malpractice

claim associated with a claim against otolaryngologists

between 1985 and 2005 was ‘‘improper performance.’’

Operative procedures involving the nose, nasal cavity, and

paranasal sinuses were the most frequent conditions or diag-

noses associated with improper performance. This repre-

sented 64.25% of the total indemnity paid under this

classification of claims between 1985 and 2005. The top 3

most prevalent claims against otolaryngologists involved the

diagnoses sinusitis, deviated nasal septum, and diseases of

the upper respiratory tract, accounting for 51% of the

claims. However, these claims resulted in 70.3% of the total

indemnity compensation. Of all the operative claims against

otolaryngologists between 1985 and 2005, 34.5% involved

procedures on the nose and sinuses. This study also pointed

out that about 16% of the claims against otolaryngologists

for all procedures involved informed consent allegations.

In Lynn-Macrae et al,

the electronic legal database

LexisNexis was used to search all reported United States

federal and state civil trials over a 14-year period in which

malpractice associated with ESS was alleged. Results of this

analysis of 41 cases showed that negligent technique (76%)

was the majority reason for malpractice suits, followed by

lack of informed consent (37%), unnecessary surgery

(27%), failure to diagnose (7%), and wrongful death (5%).

Chronic sinusitis (73%) was the most common indication

for surgery. CSF leak (24%) was the most common injury

caused by surgery, followed by diplopia (17%), brain

damage (15%), atrophic rhinitis (15%), and anosmia (15%).

Fifty-six percent of the cases were ruled in favor of the

defendant and 41% for the plaintiff. The median plaintiff

award was $410,239. The highest monetary award was for

intractable pain, $1,487,000 more than the highest award for

wrongful death.

In Lydiatt and Sewall,

the Westlaw legal database was

searched for all jury verdict reports involving sinonasal dis-

ease treatment by all specialties from 1988 to 2005. This

search rendered 152 cases. Defendants prevailed in 62% of

cases, while plaintiffs received a jury award in 23% and a

settlement in 15% of cases. The median plaintiff award

(jury awards and settlements) was $575,000. In this study,

younger patients prevailed at a higher rate that did older

patients (50% vs 35%), and men had a higher median award

than did women ($1,000,000 vs $314,000). The most

common claims were related to ESS, followed by sinonasal

cancer and misdiagnosis. The most common complications

included CSF leak (35%), orbital trauma (24%), and anos-

mia (19%). Lack of informed consent was claimed in 26%

of the ESS cases, with plaintiffs prevailing in 36% of these

cases. Patients with cancer received the highest median

award, at $1.5 million.

The present study of cases from 2004 to 2013 identified

similar trends as previous studies when looking at both

medical and surgical management of sinonasal disease by

otolaryngologists. It differs from previous studies that

looked at multispecialty management of sinonasal disease

and exclusively ESS malpractice.

Negligent technique

(38%) continues to be the most common type of malpractice

in this area, and informed consent (27%) continues to be a

significant contribution to the litigation landscape in sinona-

sal disease. CSF leak, meningitis, nasal obstruction, and

visual impairment were the most common alleged injuries

after sinonasal surgery. Fifteen percent of the cases were

wrongful death suits, with 2 cases involving failure to diag-

nose sinonasal cancer and 1 case involving perioperative

pneumonia leading to respiratory failure. The mean award

of $225,000 and mean settlement of $212,500 is less than

that found in previous studies.

Table 2.

Alleged Injury.

Alleged Injury

No. of Cases

Cerebrospinal fluid leak

Death

Meningitis

Visual impairment

Nasal obstruction

Headache

Recirculation

Anoxic brain injury

Orbital hematoma

Bleeding

Infection

Anosmia

Burning mouth syndrome

Foreign body in abdominal fat graft site

Need for further surgery

Otolaryngology–Head and Neck Surgery 152(3)

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