- Email: [email protected]
How Often Do Oral Maxillofacial Surgeons Lose Malpractice Cases and Why?
DENTOALVEOLAR SURGERY
How Often Do Oral Maxillofacial Surgeons Lose Malpractice Cases and Why? Puhan He, DMD,* Kolina Mah-Ginn, BS,y Deepti Shroff Karhade, DMD,z Bruce Donoff, DMD, MD,x Nimer Adeeb, MD,k Raghav Gupta, BS,{ Shawn Medford, BS,# and Salim Afshar, DMD, MD** Purpose:
Although oral maxillofacial surgeons (OMSs) carry high legal risk in malpractice lawsuits, data elucidating the reason behind those claims and their outcomes are scarce. The purpose of the present study was to characterize the trends, analyze the payouts, and determine the etiology of malpractice cases against OMSs.
Materials and Methods:
A retrospective case series study was performed using the Westlaw database to access medical malpractice cases filed against OMSs from 1980 to 2017. The inclusion criterion was that the defendants had included an OMS. Two of us independently collected the demographic data, verdicts, payouts, and etiology of the litigation.
Results:
The study sample included 183 cases adjudicated from 1980 to 2017. The results highlighted the temporal and geographic trends, payout information, and etiology of the cases. The total number of malpractice cases had decreased by 60% from 2011 to 2015 compared with the previous 5 years. The greatest incidence of malpractice cases filed per 100 practicing OMSs was in New York, followed by California and Massachusetts. Ruling in favor of the defendant OMS was noted in 55% of the cases, of the plaintiffs in 40% of the cases, and had reached a settlement before trial in 3% of the cases. In the cases in which the ruling had favored the plaintiff, the average payment was $812,449.08, with a median payment of $250,000.00 (range, $13,750.00 to $14,887,525.95). Extraction cases represented 53% of all malpractice litigations. Of these, 65% had been third molar extractions that had resulted in lingual nerve injury (26%), postoperative infection (17%), wrong site extractions (15%), and death or brain damage (10%), among other injuries.
Conclusions: Approximately one half of the malpractice cases favored the defendant OMS. Most cases were third molar extractions resulting in injuries ranging from lingual nerve injury to death. Complementary data from insurance companies would be helpful to provide more specific analysis of the etiology and trends of the malpractice cases. Ó 2019 American Association of Oral and Maxillofacial Surgeons J Oral Maxillofac Surg -:1-9, 2019
*Student, Harvard School of Dental Medicine, Harvard University,
**Professor, Harvard School of Dental Medicine, Boston, MA; and
Boston, MA.
Attending Surgeon, Department of Plastic and Oral Surgery, Boston
yStudent, Harvard School of Dental Medicine, Harvard University,
Children’s Hospital, Boston, MA.
Boston, MA.
Conflict of Interest Disclosures: None of the authors have any
zStudent, Harvard School of Dental Medicine, Harvard University,
relevant financial relationship(s) with a commercial interest.
Boston, MA.
Address correspondence and reprint requests to Dr He: Harvard
xDean, Harvard School of Dental Medicine, Harvard University,
School of Dental Medicine, 188 Longwood Ave, Boston, MA 02115;
Boston, MA. kResident, Department of Neurosurgery, Louisiana State
e-mail: [email protected] Received November 17 2018
University, Shreveport, LA.
Accepted July 2 2019
{Student, Department of Neurosurgery, Rutgers New Jersey
Ó 2019 American Association of Oral and Maxillofacial Surgeons
Medical School, Newark, NJ.
0278-2391/19/30824-9
#Researcher, Department of Plastic and Oral Surgery, Boston
https://doi.org/10.1016/j.joms.2019.07.001
Children’s Hospital, Boston, MA.
1
2 Malpractice lawsuits have become more prevalent during the past 2 decades, emphasizing the need to elucidate litigation claims and outcomes.1 Surgical specialties, in particular, have been shown to carry high legal risks,1-3 encompassing some of the highest malpractice premiums.4 The Westlaw database, an online legal research source, has been largely used to analyze litigation trends across a wide range of practices. Various studies using the Westlaw database have discussed surgical specialties as a vulnerable field for malpractice litigation.5 Although most cases were ruled in favor of the surgeon, it is clearly a significant financial and time burden. However, although oral and maxillofacial surgeons (OMSs) carry a high risk in malpractice lawsuits, to the best of our knowledge, no current reported data have described the prevalence or their outcomes and regional differences. Thus, the purpose of the present study was to describe the medicolegal trends of OMSs and to characterize the circumstances that led to the lawsuit. The specific aims of the present study were 1) to characterize the geographic and temporal trends of malpractice litigations against OMSs; 2) to determine the average payouts; and 3) to highlight the etiology of litigation cases, with a focus on extraction cases.
Materials and Methods To address the research purpose, we designed and implemented a retrospective case series using data from an online legal research database, Westlaw Next (Thomson Reuters, New York, NY). Using the Westlaw database, state and federal jury verdicts of litigations toward OMSs from January 1, 1980 to December 31, 2017 were retrieved. Westlaw Next includes trial and settlement reports from more than 40,000 databases and has been previously used to characterize medicolegal trends.2,3,5-7 The search terms used were ((Oral & surgery) OR (oral & surgeon) OR mandible OR mandibular OR maxillary OR tooth OR (wisdom & tooth) OR (wisdom & teeth) OR (third & molar) OR (third & molars) OR jaw) AND medical malpractice, with reference to all jury verdicts and settlements. The jurisdiction was set to All States (50 states + Tribal + Guam + Puerto Rico + Virgin Islands + Northern Mariana Islands) and All federal courts. The number of excluded cases and the reason for exclusion are shown in Figure 1, including repeat cases and those that had not included an OMS as a defendant. The present study was exempted from the institutional review board. The included cases were then systematically assessed by 2 of us independently for certain characteristics, including demographic data of plaintiffs (ie, age, gender), state in which the trial had proceeded, award payouts, jury verdicts (ie, plaintiff, defendant, settle-
OMSs AND MALPRACTICE CASES
ment before trial), and the etiologies and complications cited in the case reports. The number of malpractice cases per actively licensed OMS within each state was calculated using data obtained from the Dental Demographics website (available at: dentagraphics.com).8 Furthermore, the 2 investigators independently used the Google search engine to ensure that the defendant was an OMS for the case to meet the inclusion criterion. Subanalysis of the extraction litigation cases was performed to quantify the injury claimed, the reason for litigation, postinjury management, and payout data. Statistical analysis was performed using SPSS, version 21.0 (IBM Corp, Armonk, NY). The Pearson test was used to detect the correlation between the different study variables. Statistical significance was defined as P < .05.
Results SELECTION OF RELEVANT CASES
The initial search yielded 1375 malpractice cases with the search terms. Excluding the cases that were not against OMSs (n = 1167) and duplicate cases (n = 25), from 1980 to 2017, 183 cases were included for further analysis (Fig 1). PATIENT DEMOGRAPHIC DATA
The average age of the plaintiff was 50.0 years (Table 1) with a female/male ratio of 2:1. GEOGRAPHIC DISTRIBUTION
The cases were distributed across 22 states (Table 1). New York (n = 52; 28%), California (n = 45; 25%), and Massachusetts (n = 12; 7%) had the highest absolute number of malpractice cases against OMSs and the greatest incidence or number of cases per 100 OMSs (Table 1). All of the cases had been adjudicated at the state level (Fig 2). CHRONOLOGIC DISTRIBUTION OF CASES
Further chronologic analysis of the cases demonstrated a general upward trend when assessed in 5year intervals. The greatest number of claims found was from 2006 to 2010, with a total of 31 cases (54.4%). A sharp decline of 60% in the number of cases had occurred after 2010 (Fig 3). JURY VERDICTS AND PAYMENTS
Of the 183 cases, 5 (3%) had been settled before the trial date. The 5 settlement cases with available data had an average payout amount of $784,999.80. Of the remaining case reports, 74 (40%) had had a plaintiff verdict and 101 (55%) had ruled for the defendant. The payout amount had ranged from $13,750.00 to
3
HE ET AL
FIGURE 1. Flow chart illustrating the search strategy. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
$14,887,525.95 (average, $820,894.33). One case with an extraordinarily high award payout of $14,887,525.95 skewed the mean. The median payout was $250,000.00. The total payout amount was $60,746,180.75. REASON FOR LITIGATION
A variety of alleged reasons led to the filing of the medical malpractice claims. The most common procedure performed was extraction (n = 97; 53%). Of these procedures, 63 (34%) had been third molar extractions. Other procedures had included dental implant surgery (n = 32; 18%), orthognathic surgery (n = 14; 8%), temporomandibular joint (TMJ) surgery or TMJ implant removal (n = 8; 4%), biopsy (n = 6; 3%), cosmetic surgery (n = 6; 3%), fracture treatment (n = 4; 2%), and failure to diagnose cancer (n = 3; 2%). The most common etiology for the case was nerve injury (n = 50; 27%), followed by postoperative infection (n = 25; 14%), pain (n = 24; 13%), postoperative jaw injury (n = 21; 11%), death or brain damage (n = 15; 8%), and failure to diagnose (n = 5; 3%; Table 2, Fig 4). Procedural error was cited as the most common reason for litigation involving 87 of the 183 cases (48%). The second most common reason was the lack of informed consent (n = 54; 30%). Other reasons included, but were not limited to, failure to diagnose (n = 46; 25%), failure to treat (n = 48; 26%), failure to refer or order diagnostic tests (n = 34; 19%), and death (n = 14; 8%). In addition, 40% of the cases had necessitated revision or correction surgery and 17% of the cases had required hospitalization or emergent treatment. CASES INVOLVING DEATH
Litigation cases involving death were associated with the highest malpractice payouts at an average of $1,155,829.07 when the verdict had been in favor of the plaintiff (7 of 14 cases). The most common cause of death in these cases was anesthesia related (6 of the 14 cases), followed by medical conditions
not elucidated in the encounter, including bleeding disorder, alcoholism, diabetes, and angioedema (5 of 14 cases). ANALYSIS OF EXTRACTION CASES
Extraction cases constituted 53% of the overall litigation cases. Of those cases, 65% had been third molar teeth extractions. The average age of the plaintiffs in the third molar cases was 31.2 years compared with 47.5 years for those who had undergone non–third molar teeth extraction. The most common alleged injury was nerve injury (n = 36; 37%), with lingual nerve injury the most frequent (n = 25; 26%), followed by inferior alveolar nerve injury (n = 11; 11%) and mental nerve injury (n = 2; 2%). Other injuries included postoperative infection (n = 17; 18%), wrong site extraction (n = 15; 15%), extraction leading to death or severe brain damage (n = 10; 10%), injury to the temporomandibular joint (n = 7; 7%), sinus perforation (n = 3; 3%), and sexual assault (n = 1; 1%; Table 3). The most common reason for extraction-related litigation was failure to obtain consent or inform of risk (n = 28; 29%). Other reasons the plaintiff and expert witness had stated had included instrumentation error (n = 12; 12%), failure to prescribe antibiotics (n = 6; 6%), sedation/general anesthesia error (n = 6; 6%), retained objects (n = 3; 3%), excessive postoperative bleeding (n = 3; 3%), allergy (n = 1; 1%), and other unspecified negligence (n = 25; 26%). Postoperative management of complications included the immediate use of the emergency department or hospitalization, followed, in chronicity, by microneurosurgery and other corrective procedures to manage the injury. A total of 20 cases (21%) had required hospitalization or the use of the emergency department. In addition, 43 cases (44%) had required corrective procedures. No correlation was found between the requirement for any surgery or hospitalization, including emergency department admission, and the jury verdict (P = .71).
4
OMSs AND MALPRACTICE CASES
Table 1. PLAINTIFF DEMOGRAPHIC DATA, GEOGRAPHIC DISTRIBUTION STRATIFIED BY STATE, ABSOLUTE NUMBER OF CASES, AND NUMBER OF CASES PER 100 ORAL MAXILLOFACIAL SURGEONS
Plaintiff Demographic Data Gender* Female Male Age (yr)y Mean Range State (no. of practicing OMSs)z Arizona (112) California (871) Connecticut (141) Florida (445) Georgia (203) Iowa (75) Illinois (289) Indiana (138) Kansas (56) Louisiana (93) Maryland (213) Massachusetts (221) Michigan (210) Missouri (115) Nevada (42) New Jersey (106) New York (671) Ohio (244) Oklahoma (80) Pennsylvania (375) Texas (530) Washington (174)
n (%)
116 (63) 61 (33) 50.0 8-80 1 (0.89) 45 (5.17) 1 (0.71) 10 (2.25) 1 (0.49) 1 (1.33) 2 (0.69) 1 (0.72) 1 (1.79) 3 (3.23) 2 (0.94) 12 (5.43) 5 (2.38) 1 (0.87) 1 (2.38) 14 (0.94) 52 (7.75) 6 (2.46) 2 (2.50) 10 (2.67) 9 (1.70) 3 (1.72)
Abbreviation: OMSs, oral maxillofacial surgeons. * Data for 6 cases unavailable. y Data for 104 cases unavailable. z Data presented as number of cases (cases per 100 OMSs). He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
Of the 97 extraction cases, 48 (49%) were ruled in favor of the plaintiffs, 45 (46%) in favor of the defendants, and 4 (4%) that had been settled before the trial date. The total payout amount for the extraction cases was $34,630,968.00 (average, $721,478.50; median, $245,000). The proportionate payout amount of extraction cases to the total payout amount is 57%.
Discussion The present study aimed to characterize the trends in malpractice claims toward OMSs and better understand the nature of these claims. The specific aims of the present were 1) to characterize the geographic and temporal trends of malpractice litigations; 2) to determine the verdicts and average payouts; and 3)
to elucidate the etiology of litigation cases with a focus on extraction cases. Although several studies have aimed to better characterize malpractice claims in the medical specialties, few have identified the factors that led to allegations in oral and maxillofacial surgery. Of the 183 cases reported from 1980 to 2017 there was a female/male ratio of 2:1. New York (28%), California (25%), and Massachusetts (7%) had the highest absolute number of malpractice cases against OMSs and the highest number of cases per 100 OMSs. Chronologic analysis of the cases demonstrated that the greatest number of claims was from 2006 to 2010. A decline of 60% had occurred in the number of cases after 2010. Of the case reports, 40% had a plaintiff verdict and 55% had ruled for the defendant. The payout amount ranged from $13,750.00 to $14,887,525.95 (average, $820,894.33; median payout, 250,000.00). The total payout amount was $60,746,180.75. Among the myriad of procedures that led to litigation, the most common procedure performed was extraction (53%), and 34% of these cases were third molar extractions. Procedural error (48%) and the lack of informed consent (30%) were cited as the most common reasons for litigation. The most common alleged injury was nerve injury (37%), with lingual nerve injury the most frequent (26%). Of the 97 extraction cases, 49% had ruled in favor of the plaintiffs and 46% in favor of the defendants; 4% had been settled before the trial date. The total payout amount for the extraction cases was $34,630,968.00 (average, $721,478.50; median, $245,000). The proportionate payout amount for the extraction cases to the total payout amount was 57%. PATIENT DEMOGRAPHIC DATA AND GEOGRAPHIC DISTRIBUTION OF CASES
The greatest number of malpractice cases filed per 100 practicing OMSs was in New York, California, and Massachusetts. The lowest number of cases for the states with at least 1 case per 100 practicing OMSs was in Georgia, Illinois, and Connecticut. This could have been multifactorial with the potential contributing factors including the average social economic status, level of education, and access to care, among others. A significant correlation was found between a larger state population and greater number of litigation cases (r = 0.72; P < .001). However, no significant correlation was evident between the number of litigation cases and the OMS/population ratio (r = 0.24; P = .29). CHRONOLOGIC DISTRIBUTION OF DATA
An increase in the number of malpractice cases against OMSs had occurred from 1985 to 2010, followed by a sharp decline. A similar trend was reported
5
HE ET AL
FIGURE 2. Malpractice cases per 100 licensed oral maxillofacial surgeons per state. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
in the analysis of litigations related to other surgical specialties, including neurosurgery.6 This suggests a more systemic change in malpractice policy or healthcare policy. In 2000, the Institute of Medicine reported an annual 98,000 preventable deaths due to medical errors in their report ‘‘To Err Is Human,’’ marking the beginning of a nationwide movement to improve the quality of care.9 This increased focus on patient advocacy has perhaps contributed to the increase in malpractice claims. The increase in defensive medicine also prompted several studies in the healthcare costs of malpractice litigation. In 2010, a reported $210 billion was spent annually on needless care
motivated by fear of malpractice litigation and $55.6 billion on medical liability system.10,11 Tort reform, which has been enacted by multiple states, is an effort to counteract these data and reduce the incidence of malpractice litigation. However, its effectiveness has remained controversial.7 JURY VERDICTS AND PAYMENTS
The verdict went to the defendant OMS in most cases (n = 101; 55%). The verdict and payouts were state dependent. Of the 22 states that had claims against an OMS, Nevada and Washington had a 100%
FIGURE 3. Timeline illustrating the number of litigation cases toward oral maxillofacial surgeons at 5-year intervals from 1980 to 2015. Note that data from before 1980 and after 2015 were excluded. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
6
OMSs AND MALPRACTICE CASES
Table 2. ETIOLOGY AND VERDICTS OF MALPRACTICE CASES
Variable Procedure leading to litigation Extraction All Third molar only Dental implant surgery Orthognathic surgery TMJ surgery/procedure Biopsy Cosmetic surgery* Fracture treatment Other Injury claimed Nerve injury Postoperative infection Pain Postoperative jaw injuryy Death/brain damage Failure to diagnose cancer Reason for litigation Procedural error/standard of care Lack of informed consent Failure to treat Failure to diagnose Failure to refer/order diagnostic tests Verdictz Plaintiff Defendant Settlement Payout ($) Range Average plaintiff verdict payout Average settlement amount
n (%)
97 (53) 63 (34) 32 (18) 14 (8) 8 (4) 6 (3) 6 (3) 4 (2) 16 (9) 50 (27) 25 (14) 24 (13) 21 (11) 15 (8) 5 (3) 87 (48) 54 (30) 48 (26) 46 (25) 34 (19)
74 (40) 101 (55) 5 (3) $13,750-$14,887,525.95 $820,894.33 $784,999.80
Abbreviation: TMJ, temporomandibular joint. * Septoplasty, blepharoplasty, liposuction, face lift. y Jaw fracture and necrosis, TMJ symptoms, ankyloses. z Three cases were not included; 1 was a mixed verdict case, 1 was a plaintiff verdict but non-negligent oral maxillofacial surgeon, and 1 was a settlement case reached with a non–oral maxillofacial surgeon party. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
plaintiff verdict, with 1 of 1 case and 3 of 3 cases, respectively. These were followed by Louisiana (67%; 2 of 3 cases), Florida (60%; 6 of 10 cases), New Jersey (57%; 8 of 14 cases), California (48% (22 out of 45 cases), Texas (44%; 4 of 9 cases), Massachusetts (42%; 5 of 12 cases), Michigan (40%; 2 of 5 cases), Ohio (33%; 2 of 6 cases), New York (31%; 16 of 52 cases), and Pennsylvania (30%; 3 of 10 cases). Arizona, Connecticut, Georgia, Iowa, Indiana, Kansas, and Missouri each had 1 malpractice case with a defendant
FIGURE 4. Malpractice etiologies. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
verdict. Illinois, Maryland, and Oklahoma each had 2 malpractice cases with a defendant verdict for both. The average payout in the states with the highest number of litigation cases was $1,140,466.88 in New York, $287,327.09 in California, $265,650.00 in Massachusetts, $1,682,004.38 in New Jersey, $175,133.33 in Pennsylvania, and $551,466.50 in Florida. Recent data showed that payouts for medical malpractice per capita were highest in New York, Massachusetts, Pennsylvania, and New Jersey.12 Their findings suggest that differences might exist between medical malpractice cases and oral-maxillofacial surgery malpractice cases. Future studies to elicit these nuances could clarify the variations in payout amount between states. The average payout from the present study for the cases overall was $820,894.33 and for extraction cases was 721,478.50. The cases that reached a settlement before trial or were unreported were not included in the present study. However, settled cases represent a majority of malpractice claims. Furthermore, Westlaw cases represent a subgroup of aggravated cases that went to court and were recorded. It is, thus, likely to be skewed by large payout figures. It might not represent all cases, which would also include data from other insurers such as the OMS National Insurance Company. Additionally, the injury claimed might determine the level of payout. Stratification by injury highlighted that for the cases that had involved only nerve injury (50 cases), the average payout was $177,654.70. In contrast, the average payout was $221,316.82 for postoperative infections, including osteomyelitis and dry sockets (25 cases). The average payout was $45,534.13 for wrong site extractions (15 cases). Finally, the average payout was $1,155,829.07 for cases that involved death (14 cases).
7
HE ET AL
Table 3. ANALYSIS OF 97 EXTRACTION CASES (63 THIRD MOLAR EXTRACTIONS)
Variable Demographic data Gender Female Male Mean age (yr) Third molar group Non-third molar group Injury claimed Mandibular nerve injury Lingual nerve IAN Mental nerve Postoperative infection Extraction of wrong tooth Death/brain damage TMJ injury/jaw fracture Sinus perforation Sexual assault Reason for litigationz Consent/failure to inform risk Instrumentation error Failure to prescribe antibiotics Sedation/GA error Retained object Excessive postoperative bleeding Allergy Unspecified negligence Verdict Plaintiff Defendant Settlement Payout Range Average plaintiff verdict payout Average settlementx amount
Value
61 36 31.2* 47.5y 36 25 11 2 17 15 10 7 3 1 28 12 6 6 3 3 1 25 48 45 4 $13,750-$10,200,000 $721,478.50 $514,999.67
Abbreviations: GA, general anesthesia; IAN, inferior alveolar nerve; TMJ, temporomandibular joint. * Data for 35 cases unavailable. y Data for 20 cases unavailable. z Some cases may qualify for more than one category. x Data for 1 case was excluded because of a settlement with a non-oral surgeon party. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
EXTRACTION CASES
The global prevalence of impacted third molars is significant. A systematic review found a 24.4% prevalence of impaction, with a 57.58% odds of the molar being in the mandible.13 This epidemiologic data might explain the high proportion of extraction
malpractice cases compared with other procedures. However, that study found no difference in the prevalence of impacted third molars between men and women.13 In the present study, 1.7 times more women had gone to court for a malpractice claim against an OMS because of teeth extraction compared with men. This might have been due to a greater incidence of inferior alveolar nerve (IAN) injury in women secondary to the relatively less buccolingual thickness of the mandible in women.14,15 A study evaluating effectiveness of panoramic radiographs in detecting the proximity of the mandibular canal to the third molar by Nakagawa et al15 suggested that the probability of the third molar and mandibular canal to be in contact was greater in women than in men when the panoramic radiograph showed increased risk. The average age for third molar cases was 31.2 years. The current recommendations from many studies and practicing OMSs have indicated that surgery performed at a younger age when the third molar roots have not yet mineralized completely can minimize complications such as nerve damage.14,16-19 The average age of 31.2 years further indicates the increased incidence of complications that led to litigation claims in the present study. Extraction cases represented 53% of all malpractice litigation cases. Of these, 65% were third molar extractions for which the plaintiffs had complained of injuries to the IAN, lingual nerve injury, and/or mental nerve injury. Similarly, other studies discussing malpractice claims related to tooth extractions determined that most litigations were for third molar extractions that had resulted in injury to the IAN or lingual nerve.20 The general risk of IAN injury associated with third molar extraction has ranged from 0.5 to 8%.21-26 Also, in most cases, the injury will not be permanent. Rarely, for less than 1% of cases, permanent IAN injury has been reported.26,27 However, the disproportionately high litigation cases related to nerve injury suggests that this experience is linked with significant discontent. Many studies have evaluated the effectiveness of panoramic radiographs in ruling out postoperative IAN injury. Specifically, several investigators have highlighted the radiologic signs corresponding to a third molar that closely approximates the IAN and highly correlated with an increased risk of IAN injury. These included, most importantly, 1) a radiolucent band of roots where it crosses the inferior alveolar canal; 2) interruption of the cortical lines of the inferior alveolar canal; and 3) abrupt deviation of the inferior alveolar canal around the root apices.22,26 Su et al28 determined that although panoramic radiographs can be sufficient in ruling in the possible risk of postoperative IAN injury, they will not be sufficient to rule out this complication before mandibular third molar surgery.
8
OMSs AND MALPRACTICE CASES
Moreover, Blaeser et al22 emphasized that when 1 or more high-risk radiographic signs are observed, additional imaging studies such as preoperative computed tomography (CT) could be indicated for diagnosing and planning of the extraction. However, obtaining the CT images will not reduce risk of IAN injuries.29 Thus, a thorough discussion with the patient regarding the potential complications is vital. Ghaeminia et al30 concluded in a review of the outcomes of surgically removed versus retained asymptomatic disease-free impacted third molars that the evidence is insufficient to determine whether the latter cases should be extracted. Anesthesia-related complications were the most common cause of death in the extraction cases and the overall litigation cases. A malpractice litigation study regarding anesthesia-related OMS cases found that both the operator-anesthesia model and cases with a third-party anesthetist incurred injury.5 Another cause was complications resulting from a preexisting medical condition, highlighting the value of taking a good patient history. STUDY LIMITATIONS
The Westlaw database provides a detailed collection of medical malpractice cases and has been used in other studies to examine malpractice litigation.6,31,32 However, the data are limited to verdicts and settlement reports from publicly available state and federal court records. Westlaw representatives have indicated that the inclusion of cases varies by jurisdiction and by the commercial vendor supplying the data. Some jurisdictions rely on attorney-reported outcomes, and others also provide involuntarily and anonymous reported records. The data available from Westlaw database thus are not representative of all cases. Furthermore, the detail provided for each case varies, ranging from basic information to a detailed and complete description of the case. Thus, the reported claims represent a small portion of all oral and maxillofacial surgery claims. This underreporting could have skewed the interpretation of the data. Despite these limitations, legal professionals and healthcare professionals both use this database to elucidate important information in their respective fields. In conclusion, approximately one half of the malpractice cases favored defendant OMSs, with most cases resulting from third molar extractions with injuries ranging from lingual nerve injury to death. A thorough medical history, detailed preoperative planning, and proper documentation of informed consent should be obtained to minimize the risk of malpractice litigation and patient safety. Future studies should further investigate procedure- or injuryspecific malpractice and factors influencing litigation
such as the technology used during preoperative planning. Complementary data from insurance companies would be helpful to provide a more specific analysis of the etiology and trends of malpractice cases. Acknowledgments The authors would like to acknowledge Edward T. Lahey, MD, DMD, from Massachusetts General Hospital and Bernard Friedland, BChD, MSc, JD, from the Harvard School of Dental Medicine, who provided great insights and expertise for the present study.
References 1. Choudhry AJ, Haddad NN, Khasawneh MA, et al: Surgical fires and operative burns: Lessons learned from a 33-year review of medical litigation. Am J Surg 213:558, 2017 2. Choudhry AJ, Haddad NN, Rivera M, et al: Medical malpractice in the management of small bowel obstruction: A 33-year review of case law. Surgery 160:1017, 2016 3. Ta JH, Liu YF, Krishna P: Medicolegal aspects of iatrogenic dysphonia and recurrent laryngeal nerve injury. Otolaryngol Head Neck Surg 154:80, 2016 4. Anandalwar SP, Scholer AJ, Ninan G, et al: Dissecting malpractice in pancreaticoduodenectomy cases. J Surg Res 212:48, 2017 5. Ji YD, Dodson TB, Donoff RB, He P: Medical malpractice litigation associated with anesthesia in oral and maxillofacial surgery. J Oral Maxillofac Surg 76:1606, 2018 6. Gupta R, Griessenauer CJ, Moore JM, et al: An analysis of malpractice litigation related to the management of brain aneurysms. J Neurosurg 127:1077, 2017 7. Waxman DA, Greenberg MD, Ridgely MS, et al: The effect of malpractice reform on emergency department care. N Engl J Med 371:1518, 2014 8. Dentagraphics—Dental Demographics. Massachusetts Dental Demographics. Available at: https://dentagraphics.com/ massachusetts-infographic/. Accessed October 20, 2018 9. Institute of Medicine, Committee on Quality of Health Care in America. To Err Is Human: Building a Safer Health System. Google Books. Available at: https://www.nap.edu/catalog/9728. Accessed January 19, 2019 10. Cervellin G, Cavazza M: Defensive medicine in the emergency department: The clinicians’ perspective. Emerg Care J 12: 5615, 2016 11. Health Affairs. National Costs of the Medical Liability System. Available at: https://www.healthaffairs.org/doi/abs/10.1377/ hlthaff.2009.0807. Accessed January 20, 2019 12. Gower J: 2016 Medical Malpractice Payout Analysis. Available at: http://www.diederichhealthcare.com/the-standard/2016medical-malpractice-payout-analysis/. Accessed January 19, 2019 13. Carter K, Worthington S: Predictors of third molar impaction: A systematic review and meta-analysis. J Dent Res 95:267, 2016 14. Pippi R, Santoro M: A multivariate statistical analysis on variables affecting inferior alveolar nerve damage during third molar surgery. Br Dent J 219:E3, 2015 15. Nakagawa Y, Ishii H, Nomura Y, et al: Third molar position: Reliability of panoramic radiography. J Oral Maxillofac Surg 65:1303, 2007 16. Hasegawa T, Ri S, Umeda M, Komori T: Multivariate relationships among risk factors and hypoesthesia of the lower lip after extraction of the mandibular third molar. Oral Surg Oral Med Oral Pathol Oral Radiol Endod 111:e1, 2011 17. Valmaseda-Castell on E, Berini-Aytes L, Gay-Escoda C: Inferior alveolar nerve damage after lower third molar surgical extraction: A prospective study of 1117 surgical extractions. Oral Surg Oral Med Oral Pathol Oral Radiol Endod 92:377, 2001 18. Chiapasco M, Crescentini M, Romanoni G: Germectomy or delayed removal of mandibular impacted third molars: The relationship between age and incidence of complications. J Oral Maxillofac Surg 53:418, 1995
9
HE ET AL 19. Blondeau F, Daniel NG: Extraction of impacted mandibular third molars: Postoperative complications and their risk factors. J Can Dent Assoc 73:325, 2007 20. Koskela S, Suomalainen A, Apajalahti S, Vent€a I: Malpractice claims related to tooth extractions. Clin Oral Investig 21:519, 2017 21. Alling CC: Dysesthesia of the lingual and inferior alveolar nerves following third molar surgery. J Oral Maxillofac Surg 44:454, 1986 22. Blaeser BF, August MA, Donoff RB, et al: Panoramic radiographic risk factors for inferior alveolar nerve injury after third molar extraction. J Oral Maxillofac Surg 61:417, 2003 23. Bruce RA, Frederickson GC, Small GS: Age of patients and morbidity associated with mandibular third molar surgery. J Am Dent Assoc 101:240, 1980 24. Rood JP: Permanent damage to inferior alveolar and lingual nerves during the removal of impacted mandibular third molars: Comparison of two methods of bone removal. Br Dent J 172:108, 1992 25. Sisk AL, Hammer WB, Shelton DW, Joy ED: Complications following removal of impacted third molars: The role of the experience of the surgeon. J Oral Maxillofac Surg 44:855, 1986 26. Friedland B, Donoff B, Dodson TB: The use of 3-dimensional reconstructions to evaluate the anatomic relationship of the
27.
28.
29.
30.
31. 32.
mandibular canal and impacted mandibular third molars. J Oral Maxillofac Surg 66:1678, 2008 van Gool AV, Ten Bosch JJ, Boering G: Clinical consequences of complaints and complications after removal of the mandibular third molar. Int J Oral Surg 6:29, 1977 Su N, van Wijk A, Berkhout E, et al: Predictive value of panoramic radiography for injury of inferior alveolar nerve after mandibular third molar surgery. J Oral Maxillofac Surg 75:663, 2017 Cle-Ovejero A, Sanchez-Torres A, Camps-Font O, et al: Does 3dimensional imaging of the third molar reduce the risk of experiencing inferior alveolar nerve injury owing to extraction?: A meta-analysis. J Am Dent Assoc 148:575, 2017 Ghaeminia H, Perry J, Nienhuijs MEL, et al: Surgical removal versus retention for the management of asymptomatic diseasefree impacted wisdom teeth. Cochrane Database Syst Rev 8: CD003879, 2016 Blake DM, Svider PF, Carniol ET, et al: Malpractice in otology. Otolaryngol Head Neck Surg 149:554, 2013 Manfredi MA, Clark SJ, Medford S, et al: Endoscopic electrocautery incisional therapy as a treatment for refractory benign pediatric esophageal strictures. J Pediatr Gastroenterol Nutr 67:464, 2018
How Often Do Oral Maxillofacial Surgeons Lose Malpractice Cases and Why? Puhan He, DMD,* Kolina Mah-Ginn, BS,y Deepti Shroff Karhade, DMD,z Bruce Donoff, DMD, MD,x Nimer Adeeb, MD,k Raghav Gupta, BS,{ Shawn Medford, BS,# and Salim Afshar, DMD, MD** Purpose:
Although oral maxillofacial surgeons (OMSs) carry high legal risk in malpractice lawsuits, data elucidating the reason behind those claims and their outcomes are scarce. The purpose of the present study was to characterize the trends, analyze the payouts, and determine the etiology of malpractice cases against OMSs.
Materials and Methods:
A retrospective case series study was performed using the Westlaw database to access medical malpractice cases filed against OMSs from 1980 to 2017. The inclusion criterion was that the defendants had included an OMS. Two of us independently collected the demographic data, verdicts, payouts, and etiology of the litigation.
Results:
The study sample included 183 cases adjudicated from 1980 to 2017. The results highlighted the temporal and geographic trends, payout information, and etiology of the cases. The total number of malpractice cases had decreased by 60% from 2011 to 2015 compared with the previous 5 years. The greatest incidence of malpractice cases filed per 100 practicing OMSs was in New York, followed by California and Massachusetts. Ruling in favor of the defendant OMS was noted in 55% of the cases, of the plaintiffs in 40% of the cases, and had reached a settlement before trial in 3% of the cases. In the cases in which the ruling had favored the plaintiff, the average payment was $812,449.08, with a median payment of $250,000.00 (range, $13,750.00 to $14,887,525.95). Extraction cases represented 53% of all malpractice litigations. Of these, 65% had been third molar extractions that had resulted in lingual nerve injury (26%), postoperative infection (17%), wrong site extractions (15%), and death or brain damage (10%), among other injuries.
Conclusions: Approximately one half of the malpractice cases favored the defendant OMS. Most cases were third molar extractions resulting in injuries ranging from lingual nerve injury to death. Complementary data from insurance companies would be helpful to provide more specific analysis of the etiology and trends of the malpractice cases. Ó 2019 American Association of Oral and Maxillofacial Surgeons J Oral Maxillofac Surg -:1-9, 2019
*Student, Harvard School of Dental Medicine, Harvard University,
**Professor, Harvard School of Dental Medicine, Boston, MA; and
Boston, MA.
Attending Surgeon, Department of Plastic and Oral Surgery, Boston
yStudent, Harvard School of Dental Medicine, Harvard University,
Children’s Hospital, Boston, MA.
Boston, MA.
Conflict of Interest Disclosures: None of the authors have any
zStudent, Harvard School of Dental Medicine, Harvard University,
relevant financial relationship(s) with a commercial interest.
Boston, MA.
Address correspondence and reprint requests to Dr He: Harvard
xDean, Harvard School of Dental Medicine, Harvard University,
School of Dental Medicine, 188 Longwood Ave, Boston, MA 02115;
Boston, MA. kResident, Department of Neurosurgery, Louisiana State
e-mail: [email protected] Received November 17 2018
University, Shreveport, LA.
Accepted July 2 2019
{Student, Department of Neurosurgery, Rutgers New Jersey
Ó 2019 American Association of Oral and Maxillofacial Surgeons
Medical School, Newark, NJ.
0278-2391/19/30824-9
#Researcher, Department of Plastic and Oral Surgery, Boston
https://doi.org/10.1016/j.joms.2019.07.001
Children’s Hospital, Boston, MA.
1
2 Malpractice lawsuits have become more prevalent during the past 2 decades, emphasizing the need to elucidate litigation claims and outcomes.1 Surgical specialties, in particular, have been shown to carry high legal risks,1-3 encompassing some of the highest malpractice premiums.4 The Westlaw database, an online legal research source, has been largely used to analyze litigation trends across a wide range of practices. Various studies using the Westlaw database have discussed surgical specialties as a vulnerable field for malpractice litigation.5 Although most cases were ruled in favor of the surgeon, it is clearly a significant financial and time burden. However, although oral and maxillofacial surgeons (OMSs) carry a high risk in malpractice lawsuits, to the best of our knowledge, no current reported data have described the prevalence or their outcomes and regional differences. Thus, the purpose of the present study was to describe the medicolegal trends of OMSs and to characterize the circumstances that led to the lawsuit. The specific aims of the present study were 1) to characterize the geographic and temporal trends of malpractice litigations against OMSs; 2) to determine the average payouts; and 3) to highlight the etiology of litigation cases, with a focus on extraction cases.
Materials and Methods To address the research purpose, we designed and implemented a retrospective case series using data from an online legal research database, Westlaw Next (Thomson Reuters, New York, NY). Using the Westlaw database, state and federal jury verdicts of litigations toward OMSs from January 1, 1980 to December 31, 2017 were retrieved. Westlaw Next includes trial and settlement reports from more than 40,000 databases and has been previously used to characterize medicolegal trends.2,3,5-7 The search terms used were ((Oral & surgery) OR (oral & surgeon) OR mandible OR mandibular OR maxillary OR tooth OR (wisdom & tooth) OR (wisdom & teeth) OR (third & molar) OR (third & molars) OR jaw) AND medical malpractice, with reference to all jury verdicts and settlements. The jurisdiction was set to All States (50 states + Tribal + Guam + Puerto Rico + Virgin Islands + Northern Mariana Islands) and All federal courts. The number of excluded cases and the reason for exclusion are shown in Figure 1, including repeat cases and those that had not included an OMS as a defendant. The present study was exempted from the institutional review board. The included cases were then systematically assessed by 2 of us independently for certain characteristics, including demographic data of plaintiffs (ie, age, gender), state in which the trial had proceeded, award payouts, jury verdicts (ie, plaintiff, defendant, settle-
OMSs AND MALPRACTICE CASES
ment before trial), and the etiologies and complications cited in the case reports. The number of malpractice cases per actively licensed OMS within each state was calculated using data obtained from the Dental Demographics website (available at: dentagraphics.com).8 Furthermore, the 2 investigators independently used the Google search engine to ensure that the defendant was an OMS for the case to meet the inclusion criterion. Subanalysis of the extraction litigation cases was performed to quantify the injury claimed, the reason for litigation, postinjury management, and payout data. Statistical analysis was performed using SPSS, version 21.0 (IBM Corp, Armonk, NY). The Pearson test was used to detect the correlation between the different study variables. Statistical significance was defined as P < .05.
Results SELECTION OF RELEVANT CASES
The initial search yielded 1375 malpractice cases with the search terms. Excluding the cases that were not against OMSs (n = 1167) and duplicate cases (n = 25), from 1980 to 2017, 183 cases were included for further analysis (Fig 1). PATIENT DEMOGRAPHIC DATA
The average age of the plaintiff was 50.0 years (Table 1) with a female/male ratio of 2:1. GEOGRAPHIC DISTRIBUTION
The cases were distributed across 22 states (Table 1). New York (n = 52; 28%), California (n = 45; 25%), and Massachusetts (n = 12; 7%) had the highest absolute number of malpractice cases against OMSs and the greatest incidence or number of cases per 100 OMSs (Table 1). All of the cases had been adjudicated at the state level (Fig 2). CHRONOLOGIC DISTRIBUTION OF CASES
Further chronologic analysis of the cases demonstrated a general upward trend when assessed in 5year intervals. The greatest number of claims found was from 2006 to 2010, with a total of 31 cases (54.4%). A sharp decline of 60% in the number of cases had occurred after 2010 (Fig 3). JURY VERDICTS AND PAYMENTS
Of the 183 cases, 5 (3%) had been settled before the trial date. The 5 settlement cases with available data had an average payout amount of $784,999.80. Of the remaining case reports, 74 (40%) had had a plaintiff verdict and 101 (55%) had ruled for the defendant. The payout amount had ranged from $13,750.00 to
3
HE ET AL
FIGURE 1. Flow chart illustrating the search strategy. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
$14,887,525.95 (average, $820,894.33). One case with an extraordinarily high award payout of $14,887,525.95 skewed the mean. The median payout was $250,000.00. The total payout amount was $60,746,180.75. REASON FOR LITIGATION
A variety of alleged reasons led to the filing of the medical malpractice claims. The most common procedure performed was extraction (n = 97; 53%). Of these procedures, 63 (34%) had been third molar extractions. Other procedures had included dental implant surgery (n = 32; 18%), orthognathic surgery (n = 14; 8%), temporomandibular joint (TMJ) surgery or TMJ implant removal (n = 8; 4%), biopsy (n = 6; 3%), cosmetic surgery (n = 6; 3%), fracture treatment (n = 4; 2%), and failure to diagnose cancer (n = 3; 2%). The most common etiology for the case was nerve injury (n = 50; 27%), followed by postoperative infection (n = 25; 14%), pain (n = 24; 13%), postoperative jaw injury (n = 21; 11%), death or brain damage (n = 15; 8%), and failure to diagnose (n = 5; 3%; Table 2, Fig 4). Procedural error was cited as the most common reason for litigation involving 87 of the 183 cases (48%). The second most common reason was the lack of informed consent (n = 54; 30%). Other reasons included, but were not limited to, failure to diagnose (n = 46; 25%), failure to treat (n = 48; 26%), failure to refer or order diagnostic tests (n = 34; 19%), and death (n = 14; 8%). In addition, 40% of the cases had necessitated revision or correction surgery and 17% of the cases had required hospitalization or emergent treatment. CASES INVOLVING DEATH
Litigation cases involving death were associated with the highest malpractice payouts at an average of $1,155,829.07 when the verdict had been in favor of the plaintiff (7 of 14 cases). The most common cause of death in these cases was anesthesia related (6 of the 14 cases), followed by medical conditions
not elucidated in the encounter, including bleeding disorder, alcoholism, diabetes, and angioedema (5 of 14 cases). ANALYSIS OF EXTRACTION CASES
Extraction cases constituted 53% of the overall litigation cases. Of those cases, 65% had been third molar teeth extractions. The average age of the plaintiffs in the third molar cases was 31.2 years compared with 47.5 years for those who had undergone non–third molar teeth extraction. The most common alleged injury was nerve injury (n = 36; 37%), with lingual nerve injury the most frequent (n = 25; 26%), followed by inferior alveolar nerve injury (n = 11; 11%) and mental nerve injury (n = 2; 2%). Other injuries included postoperative infection (n = 17; 18%), wrong site extraction (n = 15; 15%), extraction leading to death or severe brain damage (n = 10; 10%), injury to the temporomandibular joint (n = 7; 7%), sinus perforation (n = 3; 3%), and sexual assault (n = 1; 1%; Table 3). The most common reason for extraction-related litigation was failure to obtain consent or inform of risk (n = 28; 29%). Other reasons the plaintiff and expert witness had stated had included instrumentation error (n = 12; 12%), failure to prescribe antibiotics (n = 6; 6%), sedation/general anesthesia error (n = 6; 6%), retained objects (n = 3; 3%), excessive postoperative bleeding (n = 3; 3%), allergy (n = 1; 1%), and other unspecified negligence (n = 25; 26%). Postoperative management of complications included the immediate use of the emergency department or hospitalization, followed, in chronicity, by microneurosurgery and other corrective procedures to manage the injury. A total of 20 cases (21%) had required hospitalization or the use of the emergency department. In addition, 43 cases (44%) had required corrective procedures. No correlation was found between the requirement for any surgery or hospitalization, including emergency department admission, and the jury verdict (P = .71).
4
OMSs AND MALPRACTICE CASES
Table 1. PLAINTIFF DEMOGRAPHIC DATA, GEOGRAPHIC DISTRIBUTION STRATIFIED BY STATE, ABSOLUTE NUMBER OF CASES, AND NUMBER OF CASES PER 100 ORAL MAXILLOFACIAL SURGEONS
Plaintiff Demographic Data Gender* Female Male Age (yr)y Mean Range State (no. of practicing OMSs)z Arizona (112) California (871) Connecticut (141) Florida (445) Georgia (203) Iowa (75) Illinois (289) Indiana (138) Kansas (56) Louisiana (93) Maryland (213) Massachusetts (221) Michigan (210) Missouri (115) Nevada (42) New Jersey (106) New York (671) Ohio (244) Oklahoma (80) Pennsylvania (375) Texas (530) Washington (174)
n (%)
116 (63) 61 (33) 50.0 8-80 1 (0.89) 45 (5.17) 1 (0.71) 10 (2.25) 1 (0.49) 1 (1.33) 2 (0.69) 1 (0.72) 1 (1.79) 3 (3.23) 2 (0.94) 12 (5.43) 5 (2.38) 1 (0.87) 1 (2.38) 14 (0.94) 52 (7.75) 6 (2.46) 2 (2.50) 10 (2.67) 9 (1.70) 3 (1.72)
Abbreviation: OMSs, oral maxillofacial surgeons. * Data for 6 cases unavailable. y Data for 104 cases unavailable. z Data presented as number of cases (cases per 100 OMSs). He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
Of the 97 extraction cases, 48 (49%) were ruled in favor of the plaintiffs, 45 (46%) in favor of the defendants, and 4 (4%) that had been settled before the trial date. The total payout amount for the extraction cases was $34,630,968.00 (average, $721,478.50; median, $245,000). The proportionate payout amount of extraction cases to the total payout amount is 57%.
Discussion The present study aimed to characterize the trends in malpractice claims toward OMSs and better understand the nature of these claims. The specific aims of the present were 1) to characterize the geographic and temporal trends of malpractice litigations; 2) to determine the verdicts and average payouts; and 3)
to elucidate the etiology of litigation cases with a focus on extraction cases. Although several studies have aimed to better characterize malpractice claims in the medical specialties, few have identified the factors that led to allegations in oral and maxillofacial surgery. Of the 183 cases reported from 1980 to 2017 there was a female/male ratio of 2:1. New York (28%), California (25%), and Massachusetts (7%) had the highest absolute number of malpractice cases against OMSs and the highest number of cases per 100 OMSs. Chronologic analysis of the cases demonstrated that the greatest number of claims was from 2006 to 2010. A decline of 60% had occurred in the number of cases after 2010. Of the case reports, 40% had a plaintiff verdict and 55% had ruled for the defendant. The payout amount ranged from $13,750.00 to $14,887,525.95 (average, $820,894.33; median payout, 250,000.00). The total payout amount was $60,746,180.75. Among the myriad of procedures that led to litigation, the most common procedure performed was extraction (53%), and 34% of these cases were third molar extractions. Procedural error (48%) and the lack of informed consent (30%) were cited as the most common reasons for litigation. The most common alleged injury was nerve injury (37%), with lingual nerve injury the most frequent (26%). Of the 97 extraction cases, 49% had ruled in favor of the plaintiffs and 46% in favor of the defendants; 4% had been settled before the trial date. The total payout amount for the extraction cases was $34,630,968.00 (average, $721,478.50; median, $245,000). The proportionate payout amount for the extraction cases to the total payout amount was 57%. PATIENT DEMOGRAPHIC DATA AND GEOGRAPHIC DISTRIBUTION OF CASES
The greatest number of malpractice cases filed per 100 practicing OMSs was in New York, California, and Massachusetts. The lowest number of cases for the states with at least 1 case per 100 practicing OMSs was in Georgia, Illinois, and Connecticut. This could have been multifactorial with the potential contributing factors including the average social economic status, level of education, and access to care, among others. A significant correlation was found between a larger state population and greater number of litigation cases (r = 0.72; P < .001). However, no significant correlation was evident between the number of litigation cases and the OMS/population ratio (r = 0.24; P = .29). CHRONOLOGIC DISTRIBUTION OF DATA
An increase in the number of malpractice cases against OMSs had occurred from 1985 to 2010, followed by a sharp decline. A similar trend was reported
5
HE ET AL
FIGURE 2. Malpractice cases per 100 licensed oral maxillofacial surgeons per state. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
in the analysis of litigations related to other surgical specialties, including neurosurgery.6 This suggests a more systemic change in malpractice policy or healthcare policy. In 2000, the Institute of Medicine reported an annual 98,000 preventable deaths due to medical errors in their report ‘‘To Err Is Human,’’ marking the beginning of a nationwide movement to improve the quality of care.9 This increased focus on patient advocacy has perhaps contributed to the increase in malpractice claims. The increase in defensive medicine also prompted several studies in the healthcare costs of malpractice litigation. In 2010, a reported $210 billion was spent annually on needless care
motivated by fear of malpractice litigation and $55.6 billion on medical liability system.10,11 Tort reform, which has been enacted by multiple states, is an effort to counteract these data and reduce the incidence of malpractice litigation. However, its effectiveness has remained controversial.7 JURY VERDICTS AND PAYMENTS
The verdict went to the defendant OMS in most cases (n = 101; 55%). The verdict and payouts were state dependent. Of the 22 states that had claims against an OMS, Nevada and Washington had a 100%
FIGURE 3. Timeline illustrating the number of litigation cases toward oral maxillofacial surgeons at 5-year intervals from 1980 to 2015. Note that data from before 1980 and after 2015 were excluded. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
6
OMSs AND MALPRACTICE CASES
Table 2. ETIOLOGY AND VERDICTS OF MALPRACTICE CASES
Variable Procedure leading to litigation Extraction All Third molar only Dental implant surgery Orthognathic surgery TMJ surgery/procedure Biopsy Cosmetic surgery* Fracture treatment Other Injury claimed Nerve injury Postoperative infection Pain Postoperative jaw injuryy Death/brain damage Failure to diagnose cancer Reason for litigation Procedural error/standard of care Lack of informed consent Failure to treat Failure to diagnose Failure to refer/order diagnostic tests Verdictz Plaintiff Defendant Settlement Payout ($) Range Average plaintiff verdict payout Average settlement amount
n (%)
97 (53) 63 (34) 32 (18) 14 (8) 8 (4) 6 (3) 6 (3) 4 (2) 16 (9) 50 (27) 25 (14) 24 (13) 21 (11) 15 (8) 5 (3) 87 (48) 54 (30) 48 (26) 46 (25) 34 (19)
74 (40) 101 (55) 5 (3) $13,750-$14,887,525.95 $820,894.33 $784,999.80
Abbreviation: TMJ, temporomandibular joint. * Septoplasty, blepharoplasty, liposuction, face lift. y Jaw fracture and necrosis, TMJ symptoms, ankyloses. z Three cases were not included; 1 was a mixed verdict case, 1 was a plaintiff verdict but non-negligent oral maxillofacial surgeon, and 1 was a settlement case reached with a non–oral maxillofacial surgeon party. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
plaintiff verdict, with 1 of 1 case and 3 of 3 cases, respectively. These were followed by Louisiana (67%; 2 of 3 cases), Florida (60%; 6 of 10 cases), New Jersey (57%; 8 of 14 cases), California (48% (22 out of 45 cases), Texas (44%; 4 of 9 cases), Massachusetts (42%; 5 of 12 cases), Michigan (40%; 2 of 5 cases), Ohio (33%; 2 of 6 cases), New York (31%; 16 of 52 cases), and Pennsylvania (30%; 3 of 10 cases). Arizona, Connecticut, Georgia, Iowa, Indiana, Kansas, and Missouri each had 1 malpractice case with a defendant
FIGURE 4. Malpractice etiologies. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
verdict. Illinois, Maryland, and Oklahoma each had 2 malpractice cases with a defendant verdict for both. The average payout in the states with the highest number of litigation cases was $1,140,466.88 in New York, $287,327.09 in California, $265,650.00 in Massachusetts, $1,682,004.38 in New Jersey, $175,133.33 in Pennsylvania, and $551,466.50 in Florida. Recent data showed that payouts for medical malpractice per capita were highest in New York, Massachusetts, Pennsylvania, and New Jersey.12 Their findings suggest that differences might exist between medical malpractice cases and oral-maxillofacial surgery malpractice cases. Future studies to elicit these nuances could clarify the variations in payout amount between states. The average payout from the present study for the cases overall was $820,894.33 and for extraction cases was 721,478.50. The cases that reached a settlement before trial or were unreported were not included in the present study. However, settled cases represent a majority of malpractice claims. Furthermore, Westlaw cases represent a subgroup of aggravated cases that went to court and were recorded. It is, thus, likely to be skewed by large payout figures. It might not represent all cases, which would also include data from other insurers such as the OMS National Insurance Company. Additionally, the injury claimed might determine the level of payout. Stratification by injury highlighted that for the cases that had involved only nerve injury (50 cases), the average payout was $177,654.70. In contrast, the average payout was $221,316.82 for postoperative infections, including osteomyelitis and dry sockets (25 cases). The average payout was $45,534.13 for wrong site extractions (15 cases). Finally, the average payout was $1,155,829.07 for cases that involved death (14 cases).
7
HE ET AL
Table 3. ANALYSIS OF 97 EXTRACTION CASES (63 THIRD MOLAR EXTRACTIONS)
Variable Demographic data Gender Female Male Mean age (yr) Third molar group Non-third molar group Injury claimed Mandibular nerve injury Lingual nerve IAN Mental nerve Postoperative infection Extraction of wrong tooth Death/brain damage TMJ injury/jaw fracture Sinus perforation Sexual assault Reason for litigationz Consent/failure to inform risk Instrumentation error Failure to prescribe antibiotics Sedation/GA error Retained object Excessive postoperative bleeding Allergy Unspecified negligence Verdict Plaintiff Defendant Settlement Payout Range Average plaintiff verdict payout Average settlementx amount
Value
61 36 31.2* 47.5y 36 25 11 2 17 15 10 7 3 1 28 12 6 6 3 3 1 25 48 45 4 $13,750-$10,200,000 $721,478.50 $514,999.67
Abbreviations: GA, general anesthesia; IAN, inferior alveolar nerve; TMJ, temporomandibular joint. * Data for 35 cases unavailable. y Data for 20 cases unavailable. z Some cases may qualify for more than one category. x Data for 1 case was excluded because of a settlement with a non-oral surgeon party. He et al. OMSs and Malpractice Cases. J Oral Maxillofac Surg 2019.
EXTRACTION CASES
The global prevalence of impacted third molars is significant. A systematic review found a 24.4% prevalence of impaction, with a 57.58% odds of the molar being in the mandible.13 This epidemiologic data might explain the high proportion of extraction
malpractice cases compared with other procedures. However, that study found no difference in the prevalence of impacted third molars between men and women.13 In the present study, 1.7 times more women had gone to court for a malpractice claim against an OMS because of teeth extraction compared with men. This might have been due to a greater incidence of inferior alveolar nerve (IAN) injury in women secondary to the relatively less buccolingual thickness of the mandible in women.14,15 A study evaluating effectiveness of panoramic radiographs in detecting the proximity of the mandibular canal to the third molar by Nakagawa et al15 suggested that the probability of the third molar and mandibular canal to be in contact was greater in women than in men when the panoramic radiograph showed increased risk. The average age for third molar cases was 31.2 years. The current recommendations from many studies and practicing OMSs have indicated that surgery performed at a younger age when the third molar roots have not yet mineralized completely can minimize complications such as nerve damage.14,16-19 The average age of 31.2 years further indicates the increased incidence of complications that led to litigation claims in the present study. Extraction cases represented 53% of all malpractice litigation cases. Of these, 65% were third molar extractions for which the plaintiffs had complained of injuries to the IAN, lingual nerve injury, and/or mental nerve injury. Similarly, other studies discussing malpractice claims related to tooth extractions determined that most litigations were for third molar extractions that had resulted in injury to the IAN or lingual nerve.20 The general risk of IAN injury associated with third molar extraction has ranged from 0.5 to 8%.21-26 Also, in most cases, the injury will not be permanent. Rarely, for less than 1% of cases, permanent IAN injury has been reported.26,27 However, the disproportionately high litigation cases related to nerve injury suggests that this experience is linked with significant discontent. Many studies have evaluated the effectiveness of panoramic radiographs in ruling out postoperative IAN injury. Specifically, several investigators have highlighted the radiologic signs corresponding to a third molar that closely approximates the IAN and highly correlated with an increased risk of IAN injury. These included, most importantly, 1) a radiolucent band of roots where it crosses the inferior alveolar canal; 2) interruption of the cortical lines of the inferior alveolar canal; and 3) abrupt deviation of the inferior alveolar canal around the root apices.22,26 Su et al28 determined that although panoramic radiographs can be sufficient in ruling in the possible risk of postoperative IAN injury, they will not be sufficient to rule out this complication before mandibular third molar surgery.
8
OMSs AND MALPRACTICE CASES
Moreover, Blaeser et al22 emphasized that when 1 or more high-risk radiographic signs are observed, additional imaging studies such as preoperative computed tomography (CT) could be indicated for diagnosing and planning of the extraction. However, obtaining the CT images will not reduce risk of IAN injuries.29 Thus, a thorough discussion with the patient regarding the potential complications is vital. Ghaeminia et al30 concluded in a review of the outcomes of surgically removed versus retained asymptomatic disease-free impacted third molars that the evidence is insufficient to determine whether the latter cases should be extracted. Anesthesia-related complications were the most common cause of death in the extraction cases and the overall litigation cases. A malpractice litigation study regarding anesthesia-related OMS cases found that both the operator-anesthesia model and cases with a third-party anesthetist incurred injury.5 Another cause was complications resulting from a preexisting medical condition, highlighting the value of taking a good patient history. STUDY LIMITATIONS
The Westlaw database provides a detailed collection of medical malpractice cases and has been used in other studies to examine malpractice litigation.6,31,32 However, the data are limited to verdicts and settlement reports from publicly available state and federal court records. Westlaw representatives have indicated that the inclusion of cases varies by jurisdiction and by the commercial vendor supplying the data. Some jurisdictions rely on attorney-reported outcomes, and others also provide involuntarily and anonymous reported records. The data available from Westlaw database thus are not representative of all cases. Furthermore, the detail provided for each case varies, ranging from basic information to a detailed and complete description of the case. Thus, the reported claims represent a small portion of all oral and maxillofacial surgery claims. This underreporting could have skewed the interpretation of the data. Despite these limitations, legal professionals and healthcare professionals both use this database to elucidate important information in their respective fields. In conclusion, approximately one half of the malpractice cases favored defendant OMSs, with most cases resulting from third molar extractions with injuries ranging from lingual nerve injury to death. A thorough medical history, detailed preoperative planning, and proper documentation of informed consent should be obtained to minimize the risk of malpractice litigation and patient safety. Future studies should further investigate procedure- or injuryspecific malpractice and factors influencing litigation
such as the technology used during preoperative planning. Complementary data from insurance companies would be helpful to provide a more specific analysis of the etiology and trends of malpractice cases. Acknowledgments The authors would like to acknowledge Edward T. Lahey, MD, DMD, from Massachusetts General Hospital and Bernard Friedland, BChD, MSc, JD, from the Harvard School of Dental Medicine, who provided great insights and expertise for the present study.
References 1. Choudhry AJ, Haddad NN, Khasawneh MA, et al: Surgical fires and operative burns: Lessons learned from a 33-year review of medical litigation. Am J Surg 213:558, 2017 2. Choudhry AJ, Haddad NN, Rivera M, et al: Medical malpractice in the management of small bowel obstruction: A 33-year review of case law. Surgery 160:1017, 2016 3. Ta JH, Liu YF, Krishna P: Medicolegal aspects of iatrogenic dysphonia and recurrent laryngeal nerve injury. Otolaryngol Head Neck Surg 154:80, 2016 4. Anandalwar SP, Scholer AJ, Ninan G, et al: Dissecting malpractice in pancreaticoduodenectomy cases. J Surg Res 212:48, 2017 5. Ji YD, Dodson TB, Donoff RB, He P: Medical malpractice litigation associated with anesthesia in oral and maxillofacial surgery. J Oral Maxillofac Surg 76:1606, 2018 6. Gupta R, Griessenauer CJ, Moore JM, et al: An analysis of malpractice litigation related to the management of brain aneurysms. J Neurosurg 127:1077, 2017 7. Waxman DA, Greenberg MD, Ridgely MS, et al: The effect of malpractice reform on emergency department care. N Engl J Med 371:1518, 2014 8. Dentagraphics—Dental Demographics. Massachusetts Dental Demographics. Available at: https://dentagraphics.com/ massachusetts-infographic/. Accessed October 20, 2018 9. Institute of Medicine, Committee on Quality of Health Care in America. To Err Is Human: Building a Safer Health System. Google Books. Available at: https://www.nap.edu/catalog/9728. Accessed January 19, 2019 10. Cervellin G, Cavazza M: Defensive medicine in the emergency department: The clinicians’ perspective. Emerg Care J 12: 5615, 2016 11. Health Affairs. National Costs of the Medical Liability System. Available at: https://www.healthaffairs.org/doi/abs/10.1377/ hlthaff.2009.0807. Accessed January 20, 2019 12. Gower J: 2016 Medical Malpractice Payout Analysis. Available at: http://www.diederichhealthcare.com/the-standard/2016medical-malpractice-payout-analysis/. Accessed January 19, 2019 13. Carter K, Worthington S: Predictors of third molar impaction: A systematic review and meta-analysis. J Dent Res 95:267, 2016 14. Pippi R, Santoro M: A multivariate statistical analysis on variables affecting inferior alveolar nerve damage during third molar surgery. Br Dent J 219:E3, 2015 15. Nakagawa Y, Ishii H, Nomura Y, et al: Third molar position: Reliability of panoramic radiography. J Oral Maxillofac Surg 65:1303, 2007 16. Hasegawa T, Ri S, Umeda M, Komori T: Multivariate relationships among risk factors and hypoesthesia of the lower lip after extraction of the mandibular third molar. Oral Surg Oral Med Oral Pathol Oral Radiol Endod 111:e1, 2011 17. Valmaseda-Castell on E, Berini-Aytes L, Gay-Escoda C: Inferior alveolar nerve damage after lower third molar surgical extraction: A prospective study of 1117 surgical extractions. Oral Surg Oral Med Oral Pathol Oral Radiol Endod 92:377, 2001 18. Chiapasco M, Crescentini M, Romanoni G: Germectomy or delayed removal of mandibular impacted third molars: The relationship between age and incidence of complications. J Oral Maxillofac Surg 53:418, 1995
9
HE ET AL 19. Blondeau F, Daniel NG: Extraction of impacted mandibular third molars: Postoperative complications and their risk factors. J Can Dent Assoc 73:325, 2007 20. Koskela S, Suomalainen A, Apajalahti S, Vent€a I: Malpractice claims related to tooth extractions. Clin Oral Investig 21:519, 2017 21. Alling CC: Dysesthesia of the lingual and inferior alveolar nerves following third molar surgery. J Oral Maxillofac Surg 44:454, 1986 22. Blaeser BF, August MA, Donoff RB, et al: Panoramic radiographic risk factors for inferior alveolar nerve injury after third molar extraction. J Oral Maxillofac Surg 61:417, 2003 23. Bruce RA, Frederickson GC, Small GS: Age of patients and morbidity associated with mandibular third molar surgery. J Am Dent Assoc 101:240, 1980 24. Rood JP: Permanent damage to inferior alveolar and lingual nerves during the removal of impacted mandibular third molars: Comparison of two methods of bone removal. Br Dent J 172:108, 1992 25. Sisk AL, Hammer WB, Shelton DW, Joy ED: Complications following removal of impacted third molars: The role of the experience of the surgeon. J Oral Maxillofac Surg 44:855, 1986 26. Friedland B, Donoff B, Dodson TB: The use of 3-dimensional reconstructions to evaluate the anatomic relationship of the
27.
28.
29.
30.
31. 32.
mandibular canal and impacted mandibular third molars. J Oral Maxillofac Surg 66:1678, 2008 van Gool AV, Ten Bosch JJ, Boering G: Clinical consequences of complaints and complications after removal of the mandibular third molar. Int J Oral Surg 6:29, 1977 Su N, van Wijk A, Berkhout E, et al: Predictive value of panoramic radiography for injury of inferior alveolar nerve after mandibular third molar surgery. J Oral Maxillofac Surg 75:663, 2017 Cle-Ovejero A, Sanchez-Torres A, Camps-Font O, et al: Does 3dimensional imaging of the third molar reduce the risk of experiencing inferior alveolar nerve injury owing to extraction?: A meta-analysis. J Am Dent Assoc 148:575, 2017 Ghaeminia H, Perry J, Nienhuijs MEL, et al: Surgical removal versus retention for the management of asymptomatic diseasefree impacted wisdom teeth. Cochrane Database Syst Rev 8: CD003879, 2016 Blake DM, Svider PF, Carniol ET, et al: Malpractice in otology. Otolaryngol Head Neck Surg 149:554, 2013 Manfredi MA, Clark SJ, Medford S, et al: Endoscopic electrocautery incisional therapy as a treatment for refractory benign pediatric esophageal strictures. J Pediatr Gastroenterol Nutr 67:464, 2018