Malpractice Claims for Urogenital Injuries

Malpractice Claims for Urogenital Injuries

0022--5347 /88/14061 °175$02.DO /0 Vol. 140, December Printed in U.S.A. THE JOURNAL OF U:rtOLOGY Copyright© 1988 by The Williams & Wilkins Co. MALP...

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0022--5347 /88/14061 °175$02.DO /0 Vol. 140, December Printed in U.S.A.

THE JOURNAL OF U:rtOLOGY

Copyright© 1988 by The Williams & Wilkins Co.

MALPRACTICE CLAIMS FOR UROGENITAL INJURIES ALLEN F. MOREY, H. THOMAS FOLEY, DAVID G. McLEOD

AND

TIMOTHY L. PENDERGRASS

From the Department of Legal Medicine, Armed Forces Institute of Pathology, and the Department of Urology, Walter Reed Army Medical Center, Washington, D. C., and Uniformed Services University of the Health Sciences, Bethesda, Maryland

ABSTRACT

Precise information regarding patient injuries, claims and compensation in medical malpractice cases is scarce. This dearth is especially evident among cases citing injury to the genitourinary system. In an effort to explore the topic of iatrogenic urogenital damage 3,454 malpractice claims were reviewed and an analysis of 122 cases involving urogenital injury is presented. The 2 types of claims that predominated were negligent surgery, and failure to diagnose and treat urogenital disease. Nonurological practitioners were the focus of allegations of negligence in two-thirds of each type of claim. Certain surgical procedures and clinical shortcomings in a wide range of specialties were identified as being prevalent causes of malpractice claims for urogenital injuries. The correlation between money paid to claimants and specific types of injury also was examined. Suggestions are offered regarding ways to reduce the risk of malpractice liability. (J. Ural., 140: 1475-1478, 1988) James S. Todd, Senior Deputy Executive Vice-President of the American Medical Association, recently commented: "I don't think there is any issue that is more important to the medical profession today than that of professional liability, because physicians see it as not only an attack directly on their professionalism but an attack on their ability to provide the type of care that needs to be provided." 1 In the United States medical malpractice claims and their disposition have become big business, estimated as approaching $4 billion annually. 2 The American Medical Association recently reported that the average annual rate of malpractice claims nationwide increased from 8.2 to 10.1 per 100 physicians in 1985. 3 Similarly, the annual rate of malpractice claims against military health care providers grew 38 per cent between 1984 and 1986. Unfortunately, statistics outlining the range and magnitude of specific problem areas are sparse and insufficiently descriptive, especially when pertaining to urology. For example, the Medical Mutual Liability Insurance Society of Maryland recently showed that urology accounted for 2. 7 per cent of their total claims. Urology ranked tenth in frequency of claims and it was seventh in paid indemnity at $5,165,000 but the most common adverse outcomes were recorded simply as "delays in patient recovery" or "damage to skin, tissue, or muscle".4 Correlation between patient injury and compensation was not provided. A review of the American medical literature from 1980 to 1986 revealed few publications addressing medicolegal aspects of urology. Those that did discuss this topic were narrow in focus. 5 • 6 The only broad discussion of medicolegal aspects of West and Bartelt, who described the urology was that evolution of the current legal problem and categorized vulnerability by physician specialty although only 2 paragraphs were devoted to analysis of allegations in urology. 7 In their conclusion West and Bartelt call for more intensive analysis of allegations and suggest the following approach for analyzing all malpractice data: "Too often physicians react in a negative and emotional way when discussing the malpractice problem. By education we are scientists and are taught to be objective and analytical in our approach to clinical problems. The malpractice problem is clearly unique but should be approached in the same

objective and analytical manner. This means the systematic collection of data, drawing logical conclusions from analysis of that data, and responding in an intelligent manner." 7 This study attempts to provide the aforementioned systematically collected data, logical conclusions and intelligent responses in an effort to define clearly recurring causes of malpractice claims for urogenital injuries.

MATERIALS AND METHODS

The Department of Legal Medicine of the Armed Forces Institute of Pathology received 3,454 medical malpractice claims between 1980 and 1986. All claims were filed against the United States Government, under either the Federal Tort Claims Act or the Military Claims Act. These claims were submitted by other government agencies for medicolegal review and opinion. The claims were filed by retired military personnel, their dependents and dependents of active duty military personnel in the United States and overseas. In addition, claims by service members themselves, which are invalid by law,8 were reviewed for quality assurance purposes and they have been included in this study. Excluded were claims resolved before the Department of Legal Medicine, Armed Forces Institute of Pathology review was completed. In-depth analysis revealed 122 cases (3.5 per cent) during this 6-year period which involved urological structures, defined as organs of the male genitourinary system or the female urinary tract. Cases were selected according to the following criteria: identification of a urologist as the alleged negligent physician, injury to urological structures sustained as complication of surgical procedure and injury or death as a result of failure to timely diagnose or appropriately treat disease of urological structures. The claims selected were divided according to whether or not the injury was related to a surgical procedure. Claims also were analyzed with respect to the specialty of the practitioner whose alleged negligence caused the injury. Lastly, outcomes of claims were recorded. Claims were resolved either by withdrawal, denial, settlement or litigation. Compensation is the amount of money paid to claimants as the result of a settlement or court judgment. A settlement is an out-of-court agreement between the plaintiff and defendant which obviates the time and costs of bringing a case to trial. Settlement is not an admission of liability. A compromise settlement may be desirable in the absence of fault

Accepted for publication April 15, 1988. The opinions contained herein are those of the authors and the authorities cited by them, and do not necessarily reflect those of the Armed Forces Institute of Pathology, the Department of the Army, the Department of the Air Force or the Department of Defense. 1475

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when, for example, poor documentation by the physician makes a case difficult to defend. RESULTS

Surgical injuries. Negligent surgery was alleged in 73 of the 122 (60 per cent) claims related to injury of the male genitourinary system or the female urinary tract. As shown in table 1, most surgical claims resulted from procedures performed by specialists other than urologists. In fact, hysterectomy, neonatal circumcision and herniorrhaphy, all nonurological procedures, were the most common causes of surgical urogenital injury. Urologists accounted for only 23 cases (34 per cent) of surgical complications. As seen in table 2, the 23 claims against urologists were derived from 13 different types of surgical procedures. No specific urological procedure or complication predominated. Hysterectomy/Oophorectomy: Fifteen claims alleged ureteral damage, making this the single most prevalent surgical injury. Ureteral injuries comprised 21 per cent of all surgical claims, while gynecological procedures as a whole accounted for 24 of the 73 (33 per cent) negligent surgery claims. Damage to the ureter occurred almost exclusively as a complication of total TABLE

1. Malpractice claims for urogenital injuries by practitioner

specialty Field of Practice

Surgical

Nonsurgical

Totals

Urology Obstetrics/gynecology General medicine* General surgery Pediatrics Emergency medicine Other Totals

23 24 8 10 4 0 4t

13 1 16 4 4 7 4:j:

36 25 24 14 8 7 8 122

73

49

* Includes internal medicine, family practice and general practice. t Includes 1 case each of anesthesia, neurosurgery, cardiothoracic surgery and vascular surgery. :j: Includes 1 case each of radiology, psychology, nurse practitioner and physician assistant.

TABLE 2.

Procedures by urologists resulting in malpractice claims Procedure

No.

U rolithotomy Cystoscopy Cystectomy Hydrocelectomy Orchiectomy Varicocelectomy Transurethral resection of prostate Orchiopexy Penile prosthesis Retroperitoneal lymph node dissection Ureteroneocystostomy Vasectomy Circumcision Totals

4

3 2

2 2 2 2

1 1 1 1 1 1

23

TABLE

3. Outcomes of claims for injuries to genitourinary structures Total

Death or decreased chance of survival Loss of kidney Injury to kidney Injury to ureter without loss of kidney Injury to bladder Loss of testicle Injury to vas deferens Injury to penis Sexual dysfunction Failed vasectomy Unindicated surgical procedure Other Totals

abdominal hysterectomy and/or oophorectomy performed for benign indications. In only 5 cases were diagnosis and management of ureteral compromise observed intraoperatively. In most of the other cases diagnosis was made in the immediate postoperative period but diagnostic delays of up to 4 months were reported. Twothirds of ureteral injury cases contained operative reports describing adhesions or endometriosis that confounded dissection. Outcomes of cases in this category depended on whether or not kidney function was lost. The cases of ureteral ligation that resulted in nephrectomy paid a median compensation of $125,000. The cases of ureteral ligation that did not entail permanent renal compromise were settled at a median of $35,000 (table 3). Circumcision: Negligent circumcisions, of which there were 13, were the second most frequent cause of surgically related claims (18 per cent). The majority were performed by primary care physicians and the remainder by gynecologists. Plasti-bell and Gomco techniques were used in 4 cases each. Ten circumcisions were performed on neonates and 1 on an adult. In 2 other cases circumcision was performed on infants after the neonatal period, a delay associated with a 3 to 10 times higher complication rate. 9 ' 10 Two malpractice claims stemmed from circumcision of an abnormal penis, One child with hypospadias was circumcised, removing viable foreskin that would have been available for subsequent reconstructive procedures, Another newborn was diagnosed as having microphallus, A recommendation to avoid circumcising this neonate was written in the hospital chart by a pediatric endocrinologist. However, the pediatrician who performed the procedure 6 months later was not aware of this note. Postoperative course included infection, obstructive scarring and penile shaft denudation, Repair by numerous urethral dilations and 2-stage scrotal skin graft was required. Additionally, expert witnesses testified that hair-bearing graft skin on the penile shaft would cause the child permanent psychological damage. The outcome of this case was a $210,000 settlement, The most dramatic circumcision case was when electrocautery, used inappropriately with a metal Gomco clamp, caused severe burn and loss of the penis. The patient then was surgically changed to a phenotypic female subject and lifetime hormonal therapy was initiated. Outcome was an $850,000 judgment, whereas the median compensation for all circumcision cases was $6,250 (table 3). Herniorrhaphy: Herniorrhaphy was associated with damage to the urogenital system in 11 cases (15 per cent). In 8 cases the vasa deferentia were transected and in 3 testicular blood supply was compromised, causing testicular atrophy and/or infarction. General surgeons were implicated in 9 and urologists in 2 cases. Median compensation was $24,000. One case of bilateral vas transection by the same surgeon in consecutive operations was settled for $150,000. Nonsurgical injuries, Injury not related to surgery was alleged in 49 claims (40 per cent). Again, nonurologists predominated

22 9 4 14 4 19 8 13 6 3 5 15 122

No. Paid

No. Denied

No. Pending 1 5 1 3 1 2 2

14 3 1 9 1 12 3 8 1 1 4 5

7 1 2 2 2 5 3 5

5

1 1 5

62

38

22

Compensation Range

Median

$7,500-1,282,000 $100,000-150,000

$58,000 $125,000 $10,000 $35,000 $15,000 $21,250 $24,759 $6,250 $25,000 $25,000 $19,750 $30,000 $25,000

$4,000-192,000 $3,000-30,000 $1,000-150,000 $1,000-850,000

5

1

$3,500-290,000 $500-80,000 $500-1,282,000

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(table 1) with urologists being cited in only 13 (27 per cent) of the 49 claims for nonsurgical injuries. Table 4 shows the specialties of the physicians causing nonsurgical injuries and the number of claims for each disease category the practitioner was alleged to have mismanaged. Most nonsurgical cases involved failure to timely diagnose and appropriately treat urological malignancy (37 per cent) or testicular torsion (27 per cent). Failure to Diagnose and Treat Malignancy: Delay in diagnosis and treatment of urological malignancy was the most common cause of nonsurgical injury. This allegation was seen in 18 cases (37 per cent) of nonsurgical claims, and internists were cited most frequently. Table 4 illustrates the frequency of the specific tumors in these claims. Although a variety of neoplasms and clinical scenarios were represented, several recurrent themes were observed. Incomplete physical examination caused increased liability exposure in 5 cases of undetected tumors. A 61-year-old man was hospitalized for treatment of an evolving myocardial infarction. Digital rectal examination was "deferred acutely" on the admission physical examination. No notation of its eventual completion was apparent. A year later the patient was found to have prostate carcinoma and the family sued. Although this case was settled for $21,000, the median settlement for cases of this genre was $66,000. Inadequate followup of diagnostic tests and biopsies was a second major problem seen in 6 other cancer cases. A 56-yearold man was hospitalized for alcoholic detoxification. Microscopic examination of the urine reported the presence of 1 to 2 red blood cells per high power field. A year later the patient was referred to a medical clinic for evaluation of weight loss and right upper quadrant pain. Microscopic urine examination again revealed "an occasional red blood cell per high power field". Soon thereafter, the patient sustained a pathological fracture due to metastatic renal cell carcinoma. He then underwent nephrectomy and radiation therapy, and died of disseminated metastases. The family recovered compensation in the amount of $78,000. Inappropriate discharge instructions accounted for 3 more claims. Patients received ambiguous instructions, such as "return to clinic prn". Others were instructed clearly but according to a schedule outside the standard of care, such that metastasis had occurred by the time of their return. One such case resulted in a $1.1 million recovery. Missed Testicular Torsion: Next to malignancies, testicular torsion represented the most significant underdiagnosed urological condition. Of the 13 cases in this category 6 resulted from failure of emergency department physicians to obtain prompt consultation with a urologist. In 1 case the emergency department physician appropriately diagnosed and manually detorsed the spermatic cord himself but no immediate urological consultation was obtained. Instead, the patient was disTABLE 4.

Alleged Failure to Diagnose Cancer: Prostate Bladder Renal Testicular Wilms Neuroblastoma Testicular torison Kidney disease Congenital abnormality Nitrofurantoin toxicity U rolithiasis Other Totals

Totals 19 9 2

5 1 1 1 13 4 3

General Medicine*

4

charged from the hospital and instructed to return 2 days later at which time the testicle was infarcted. This case was settled for $22,500, the median amount of compensation for the 13 cases of missed torsion in this study. Outcomes. Of the claims 51 per cent resulted in recovery for the patient, including 49 per cent settled before litigation and 2 per cent settled after court judgment. Of the remaining claims 31 per cent were denied administratively and not subsequently litigated, and the outcomes of 18 per cent (22 cases) are still pending. The range of compensation was $500 to $1,282,000, with a median of $25,000. Table 3 shows the correlation of compensation to specific types of patient injury. DISCUSSION

All the claims analyzed in this study were submitted by patients who received care at federal health care treatment facilities. Most facilities were military and ranged in capability from dispensary to medical center. The population treated at these facilities, that is retirees, troops and their dependents, is comparable to that seen in the civilian sector. Claims received that involved active duty service members, although barred by law,8 were reviewed for quality assurance/risk management purposes and included in this report. Although all claims alleged malpractice, neither the filing of a claim nor the occurrence of a bad result is sufficient to establish liability. A patient may file a claim whenever he believes that improper medical care has resulted in bodily harm. A physician may be found liable only when it has been established that the physician had a duty to use the applicable standard of care in treating the patient, that the physician breached his duty and that the physician's substandard conduct was the cause of the patient's injury. 11 The physician's duty to uphold the standard of care is defined as the requirement to exercise the average degree of skill, care and diligence exercised by members of the same medical specialty community in similar situations. 12 The physician's breach of duty is a negligent act, referred to commonly as malpractice. However, negligence by itself is insufficient to establish liability in the absence of demonstrable injury or if the patient's injury was not caused directly by the negligent act. Although this study was undertaken to identify the unique features of urological practice that might predispose urologists to liability, the results show that the majority of iatrogenic injuries to urogenital structures are caused by nonurologists. In fact, hysterectomy, neonatal circumcision and herniorrhaphy, all nonurological procedures, were the most common causes of surgical injury to genitourinary tissues. These findings support the 1980 statement of West and Bartelt that urologists are among the least vulnerable surgeons. 7 Surgical injuries that were caused by urologists occurred in a

Nondiagnosed urogenital disease as related to specialty

Urology

Emergency Room

4 2

General Surgery

Pediatrics

Nurse Practitioners/ Physician Assistants

Obstetrics/ Gynecology

Psychology

Radiology

1

4

1 1

1 2 1

1 1

6

2

1 1 2

1

1 1

3 2 5

3 1

4

49

Iii

13

1

* Includes internal medicine, family practice and general practice.

7

4

1

1

4

2

I

I

I

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MOREY AND ASSOCIATES

random distribution. No specific high risk urological procedure stood out in this study. Conversely, West and Bartelt reported that vasectomy entailed more malpractice claims than any other urological procedure by a wide margin. 7 Some, in fact, have estimated that half of all malpractice claims against urologists involve vasectomy procedures. 13 The fact that claims by active duty service members are barred by law may decrease the frequency with which these personnel file claims, thus lowering the number of vasectomy claims seen in this study. In contrast, nonsurgical malpractice claims against urologists did reveal some common themes. Incomplete physical examinations, lack of diligence in retrieving laboratory results and unclear discharge instructions are some important examples of factors that may predispose urologists to the risk of malpractice suits. However, these pitfalls are universal to busy clinicians regardless of specialty. Based on this study, it cannot be concluded whether urologists are more or less likely than other physicians to cause injuries nonsurgically, although primary care practitioners were cited nearly twice as often in nonsurgical claims. Negligent injury to the genitourinary tract cannot be prevented completely but the data presented suggest certain risk management practices that might lead to fewer injuries or enable the physician to prove nonliability for a bad result. The importance of expedient consultation with a urologist cannot be over emphasized whenever the diagnosis of testicular torsion is considered. Although specific suggestions pertaining to surgical technique for hysterectomy and circumcision are beyond the scope of this article, the data do support general recommendations regarding these procedures. For instance, since two-thirds of the cases of hysterectomy with ureteral injury were associated with pathological features making dissection difficult (adhesions or endometriosis), gynecologists should not only exercise increased caution in these instances but they should also take particular care to include in their operative summaries descriptions of the measures they took before and during surgery to avoid this complication. After all, conscientious documentation of patient care is the most powerful defense a physician will have if faced by a malpractice claim. 7 Alternatively, bad records plus bad results equal substantial liability exposure even when quality care was provided. 2 For example, 1 case was otherwise defensible but it had to be settled because of an operative report that made reference to a "surgical error" causing complete transection of a ureter. Such inappropriate notes tend to shed an unfavorable light on health care

providers when records are produced in court. 2 A high index of suspicion for ureteral injury must be maintained postoperatively since symptoms may be subtle and delay in diagnosis may jeopardize renal salvagability. With respect to circumcision, if the neonatal period has passed or if a congenital anomaly is present, then this procedure should be done by a urologist or with urological consultation, although gynecologists and primary care physicians will continue to perform the vast majority of circumcisions. In summary, urologists are cited in only about a third of malpractice claims for urogenital injuries. Iatrogenic urogenital injury is clearly a multidisciplinary problem. The findings underscore the importance of effective communication between members of the various specialties who treat genitourinary disease. Prompt consultation, along with appropriate documentation, may help physicians decrease the number of iatrogenic urogenital injuries and subsequent malpractice claims. REFERENCES

1. Iglehart, J. K.: The professional liability crisis. The 1986 Duke Private Sector Conference. New Engl. J. Med., 315: 1105, 1986. 2. Fiscina, S.: Malpractice claims in the military health care system: survey of contributing factors, with recommendations. Milit. Med., 150: 511, 1985. 3. MD income is steady, liability costs up: report. AMA News, p. 17, February 13, 1987. 4. Urology-risk factors and loss control. Doctors Rx (a publication of Medical Mutual Liability Insurance Society of Maryland), 4: 1, December 1986. 5. Irwin, J. R.: Legal implications ofintraoperative consultation. Urol. Clin. N. Amer., 12: 557, 1985. 6. Babayan, R. K. and Krane, R. J.: Vasectomy: what are community standards? Urology, 27: 328, 1986. 7. West, P. J. and Bartelt, R. C.: Medicolegal aspects of urology. Urol. Clin. N. Amer., 7: 153, 1980. 8. Feres v. United States, 337 U.S. 49 (1949). 9. Metcalf, T. J., Osborn, L. M. and Mariani, E. M.: Circumcision. A study of current practices. Clin. Ped., 22: 575, 1983. 10. Herzog, L. W. and Alvarez, S. R.: The frequency of foreskin problems in uncircumcised children. Amer. J. Dis. Child., 140: 254, 1986. 11. Keeton, W. P.: Prosser and Keeton on the Law of Torts, 5th ed. St. Paul: West Publishing Co., pp. 164-165, 1984. 12. Bruni v. Tatsumi, 46 Ohio St. 2d 127, 129-130 (1976). 13. Gillenwater, J. Y. and Howards, S. S.: Yearbook of Urology. Chicago: Year Book Medical Publishers, p. 323, 1979.