- Email: [email protected]
Medical malpractice litigations involving aortic dissection
Palaniappan and Sellke
Miscellaneous
Medical malpractice litigations involving aortic dissection Ashwin Palaniappan, BA,a and Frank Sellke, MDa,b ABSTRACT
Geographic Distribution of Cases
WA 3
Objectives: Medical malpractice litigation arises when a discrepancy exists between a patient’s expectation of acceptable medical care and the care the patient receives. Aortic dissection is a frequently misdiagnosed and often-fatal condition. The purpose of this study was to characterize trends of medical malpractice litigations arising from aortic dissection, investigate the etiology, and analyze predictive factors regarding the verdict. Methods: The Westlaw legal database was used to compile relevant litigations from 1994 to 2019 across the United States. Each litigation was screened individually for inclusion, and after inclusion, descriptive factors were compiled, including patient data, litigation data, verdict data, and clinical outcomes data. The Fisher exact test was used to evaluate the significance of association between parameters and verdict type.
WI 1 NE 2 NV 1
UT 1
LA 1 MO 4
CA 20 AR 1
AZ 1 TX 6
LA 2
IL 16
MI 10 IN 3
TN 1
VA 2
KY 1
AL 4
AK 1
1
NY 11 PA 13
OH 8
MD 2
NJ 9
MA CT 3 1
SC 1
FL 6
20
Geographic distribution of medical malpractice cases involving aortic dissection.
CENTRAL MESSAGE
icantly associated with plaintiff verdicts (P < .05). Conclusions: Plaintiffs frequently cited a failure to timely diagnose, order diagnostic tests, and interpret diagnostic tests as reasons for litigations. Defendant verdicts were common, suggesting judicially acceptable standards of care are commonly satisfied. (J Thorac Cardiovasc Surg 2020;-:1-9)
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Alleged failure to test, failure to Results: In total, 135 unique litigations met criteria for inclusion, with a defendant refer, failure to consult, incidence verdict in 57% (n ¼ 77), plaintiff verdict in 20% (n ¼ 27), and settlements in of stroke, and autopsy diagnosis 23% (n ¼ 31). Plaintiffs most commonly cited a failure to diagnose as their reason are associated with defendant for litigation in 64% (n ¼ 87). Patient mortality was associated with a lower average plaintiff award, $1,892,781 versus $5,944,983, and a lower average settlement, verdicts and a failure to diagnose $1,230,923 versus $2,250,000, than their surviving counterparts. California, Illinois, is associated with plaintiff verand Pennsylvania had the most cases filed. An alleged failure to test, failure to refer, dicts in aortic dissection medical failure to consult, incidence of a stroke, and incidence of an autopsy diagnosis were significantly associated with defendant verdicts and a failure to diagnose was signif- malpractice litigations. PERSPECTIVE Medical malpractice litigation is common in cardiothoracic surgery and is disproportionately represented in potentially fatal conditions. However, research regarding medical malpractice litigation in cardiothoracic surgery is scarce. This study analyzes the etiology and characteristics of medical malpractice litigations relating to aortic dissection from 1994 to 2019 in the Westlaw legal database. See Commentary on page XXX.
Medical malpractice litigation is relatively common in cardiothoracic surgery, especially when compared with that in other specialties.1 Medical malpractice litigations are associated with a host of stressors for physicians and are filed in response to a perceived unfavorable outcome by the patient or patient’s family.2,3 Aortic dissection is an uncommon condition with an incidence of approximately From aAlpert Medical School, Brown University; and bDivision of Cardiothoracic Surgery, Rhode Island Hospital, Providence, RI. Received for publication Sept 1, 2020; revisions received Sept 28, 2020; accepted for publication Oct 8, 2020. Address for reprints: Ashwin Palaniappan, BA, Mail #5982, 69 Brown St, Providence, RI 02906 (E-mail: [email protected]). 0022-5223/$36.00 Copyright Ó 2020 by The American Association for Thoracic Surgery https://doi.org/10.1016/j.jtcvs.2020.10.064
7.7 cases yearly per 100,000.4 However, dissection is disproportionately associated with medical malpractice litigation.5,6 Acute aortic dissection often presents with symptoms that overlap with other conditions, such as acute coronary syndrome, costochondritis, and pulmonary embolus.7 Consequently, diagnosing aortic dissection may be complex or difficult. Acute aortic dissection often presents in an atypical manner, such that the initial treating physician does not consider it in the differential diagnosis.8 Type A dissections are more commonly associated with cardiac complications such as aortic valve regurgitation, myocardial infarction, and tamponade.9 Neurologic injuries are present in 10% to 40% of type A dissection, one half of which are transient injuries.10,11 Mesenteric ischemia is
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present in less than 5% of patients with either type A or type B dissections, but the in-hospital mortality of patients with mesenteric ischemia (63%) is nearly 3-fold greater than that of patients without mesenteric ischemia (24%).11 Surgical intervention is currently considered the gold standard for the management of type A dissection, with a 50% mortality within the first 48 hours if surgery is not performed.10 Unfortunately, surgical intervention does not guarantee successful management, with an early mortality after surgery of 9% to 25%.12-14 For patients presenting with complicated aortic type B aortic dissection, thoracic endovascular aortic repair has demonstrated improved outcomes.15-17 This represents a shift from primary initial medical management for acute type B aortic dissection.18,19 Although medical management of type B dissection is the recommended treatment of uncomplicated type B dissection, the mortality remains approximately 15% at 1 year.20 Despite the high incidence of misdiagnosis and mortality of aortic dissection, there is a paucity of data regarding associated trends of medical malpractice. This study presents data on medical malpractice litigations involving aortic dissection in the United States and aims to identify trends among this cohort of litigations from the Westlaw database. METHODS Search Methodology The online Westlaw legal research service (Thomson Reuters, Eagan, Minn) was used to compile medical malpractice litigations involving aortic dissection. Westlaw consists of more than 40,000 online legal databases, with judicial documents including court rulings, dockets, verdict summaries, appellate court documents, trial court memoranda, appellate decisions, settlement summaries, pretrial statements, and legal commentaries. Both US federal court and state court documents are accessible in the Westlaw database and are provided by commercial vendors and attorneys. The geographic jurisdiction of the Westlaw search used in this study encompassed all US states and territories. The expansive nature of the Westlaw database labels it as a heavily used resource for lawyers and legal professionals for comprehensive legal research.21 However, inclusion into the Westlaw database is contingent on court discretion, and Westlaw does not include litigations that were resolved before being formally recorded in court, meaning it did not consume court time.22 The Westlaw legal database has been employed for other studies concerning medical malpractice in the fields of vascular surgery, oral maxillofacial surgery, orthopedic surgery, and neurosurgery.23-27 Therefore, the present analysis in this study is limited to cases available to the Westlaw database, suggesting the true number of medical malpractice cases involving aortic dissection could be much greater than the number of cases reported in this study. Medical malpractice cases that were resolved by both parties outside of the legal system, dismissed before proceeding to a trial, or resolved before registration in the legal system are unavailable in Westlaw. However, Westlaw was chosen for this study over other online legal databases (ie, LexisNexis, Bloomberg Law, VerdictSearch) because of its comprehensive nature, acceptance and reputation within legal research, and previous validation in medical malpractice studies for other surgical subspecialties.21-27 This study investigated medical malpractice litigations involving aortic dissection in the United States from January 1, 1994, to December 31,
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2019, on both federal- and district-level courts. The search was conducted through the Boolean-based search engine of the Westlaw database, with the terms “aortic/s dissection” to yield the greatest number of litigations relating to aortic dissection, and the ‘/s’ signifies that “aortic,” or a variant of the term “aortic,” and “dissection” appeared in the same sentence. If the sentence conditional was not imposed, a large number of irrelevant litigations with aortic conditions would result, and they would not necessarily be aortic dissection, but rather be other aortic anomalies or conditions. The resulting litigations were manually and individually screened for inclusion in the study, and data were extracted from each one.
Data Collection and Statistical Analysis Each litigation had a host of characteristics that were recorded and compiled. Demographic characteristics such as patient age, sex, mortality, state, and date were recorded. In addition, features such as verdict, award size of plaintiff awards, award size of settlements, alleged reasons for litigation by the plaintiff, underlying and pre-existing conditions of the patient, and clinical outcomes after medical care were recorded. Failure to timely diagnose refers to situations in which plaintiffs argue an unnecessary delay between presentation and diagnosis allowed for the patient’s condition to deteriorate. Failure to interpret tests is defined as a defendant physician ordering diagnostic tests but failing to appreciate either the presence or severity of aortic dissection and consequently not intervening in an appropriate manner. Delayed treatment refers to an inexplicable delay between diagnosis and treatment allowing the patient’s condition to deteriorate or suffer an injury. Procedural errors are defined as avoidable errors, such as a dosing calculation with incorrect patient measurements or the use of improper instruments during procedures. Examples include an accepted error of a malpositioned cannula that was never rectified throughout the procedure, calculating dosages on incorrect patient measurements, and failing to maintain oxygenation to extremities during procedures. Congenital abnormalities were also separately recorded. Cognitive impairments and neurologic injury were documented under clinical outcomes. In addition to type of aortic dissection, alleged reasons for litigation, information about whether an elective surgery was performed, an unnecessary surgery was performed, and if a loss of consortium claim was filed were also recorded in this study. The Fisher exact test was used to evaluate the significance of association between parameters with verdict type, 2-tailed.
RESULTS Search Results The Westlaw database search with the term “aortic/s dissection” resulted in 184 litigations. Of these litigations, 29 litigations were duplicates, 11 litigations did not involve medical malpractice, and 9 litigations did not involve aortic dissection. Litigations not involving medical malpractice but had the term “aortic/s dissection” were all litigations relating to vehicular accidents. Litigations not involving aortic dissection were medical malpractice cases in which a physician’s note, which was submitted to court, makes reference to potential or previously suspected aortic dissection, but the patient was ultimately verified to not have an aortic dissection. Consequently, 135 unique litigations were included in this study for analysis. Patient Data Of the 135 included litigations from Westlaw, 90 had male patients (67%), 44 had female patients (33%), and 1 litigation had a patient of unknown sex as the alleged
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victim of medical malpractice. The average age of patients was 48.90 years, with a median of 49 years. Of the 135 litigations, 118 litigations had patients who died (87%) and 17 litigations had patients who survived (13%), reported in Table 1. Regarding the chronological distribution of cases, 2017 with 12 cases had the most cases (9%), followed by 2007 and 2005 with 10 cases each (7% each). This study looked at cases from 1994 to 2019 inclusive, a 26-year period, and the lowest number of cases recorded in a year was 1 case for 1994 and 2019 (Figure 1). Regarding the geographic distribution of cases, California with 20 cases had the most (15%), followed by Illinois with 16 cases (12%) and Pennsylvania with 13 cases (10%). 88 cases were Type A aortic dissection, with 47 defendant awards, 20 plaintiff awards, and 21 settlements (Table 2). A total of 34 cases were Type B aortic dissection, with 24 defendant awards, 3 plaintiff awards, and 7 settlements. The remaining 13 cases did not disclose type of aortic dissection in their court documents. Medical malpractice litigations involving aortic dissection in the Westlaw database were only recorded in 29 US states (Figure 2).
Verdicts Among the 135 cases, 77 cases had defendant verdicts (57%). In 27 cases, plaintiff verdicts were reached (20%), and the remaining 31 cases were resolved with
settlements (23%). The average size of settlements was $1,303,714, with a median of $855,000 and ranged from $185,000 to $6,500,000. Three settlements had confidential award sizes that were undocumented in court records. The average size of plaintiff awards was $2,192,944, with a median of $1,514,033 and ranged from $96,000 to $9,864,716. Verdicts by Mortality Patient mortality occurred in 118 cases of the total 135 cases. Among those 118 cases, defendant verdicts were reached in 64 cases (54%), plaintiff verdicts were reached in 25 cases (21%), and 29 cases were resolved by settlements (25%), as presented in Figure 3. The average size of settlements was $1,230,923, with a median of $855,000 and ranged from $185,000 to $6,500,000. Three of the cases were resolved with confidential settlements. The average size of plaintiff awards was $1,892,781, with a median of $1,500,000, and range of $96,000 to $5,400,000. In the remaining 17 cases in which patients survived, a verdict in favor of the defendant was reached in 13 cases (76%). There were 2 cases with plaintiff awards (12%) and 2 cases resolved with settlements (12%). The average plaintiff award size was $5,944,983 and ranged from $2,025,250 to $9,864,716. The average settlement size was $2,250,000 and ranged from $500,000 to $4,000,000. The relationship between patient mortality and award size is presented in Figure 4.
TABLE 1. Aortic dissection–related medical malpractice Parameter
Value number (%)
Patient demographics Female Median age, y Hypertension Marfan syndrome Other congenital abnormality Congestive heart failure
44 (33) 49 12 (8.9) 5 (3.7) 1 (0.7) 4 (2.9)
Patient mortality Died Survived
118 (87) 17 (13)
Cause for medical care Chest pain Shortness of breath
54 (40) 15 (11)
Clinical events Cardiac arrest Stroke Tamponade Pneumonia Permanent neurologic injury
14 (10.4) 9 (6.7) 14 (10.4) 5 (3.7) 14 (10.4)
Diagnosis Gastritis misdiagnosis Costochondritis misdiagnosis Autopsy diagnosis
9 (6.7) 4 (2.9) 15 (11.1)
Alleged Basis for Litigation Plaintiffs presented claims of medical malpractice, and most cases had multiple claims of medical malpractice. The most commonly cited reason of medical malpractice was failure to timely diagnose in 87 cases (64%). Following this, 41 cases had an alleged reason of delayed treatments (30%), 38 cases had an alleged reason of a failure to order diagnostic tests (28%), 16 cases had an alleged reason of a failure to interpret tests (12%), 16 cases had an alleged reason of a failure to refer to another physician (12%), 15 cases had an alleged reason of a procedural error (11%), 15 cases had an alleged reason of an improper discharge (11%), and 14 cases had an alleged reason of a failure to consult with another physician (10%), as reported in Figure 5. Table 2 presents the significance of association between parameters and defendant verdicts in the Fisher exact test, 2-tailed. A failure to test (P ¼ .023), failure to refer (P ¼ .026), failure to consult (P ¼ .024), incidence of a stroke (P ¼ .033), and incidence of an autopsy diagnosis (P ¼ .012) were significantly associated with defendant verdicts, presented in Table 2. Notably, failure to diagnose was significantly associated with plaintiff verdicts (P ¼ .015) and procedural error was significantly associated with settlements (P ¼ .016).
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Case Count
Chronological Distribution of Cases 14 12 10 8 6 4 2 0 1994
1999
2004
2009
2014
2019
Year FIGURE 1. Number of aortic dissection–related medical malpractice cases in the United States from 1994-2019. This figure highlights there is no predictive cycle or trend in the chronological distribution of medical malpractice cases involving aortic dissection from the Westlaw database.
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Clinical Attributes The chief complaint in 54 cases was chest pain (40%), and in 15 cases it was shortness of breath (11%). In 12 cases, the patient was noted to be severely hypertensive (8.9%). Six cases had patients with congenital conditions (4.4%), 5 of which were Marfan syndrome (3.7%). Four cases had patients with congestive heart failure (2.9%). Nine cases were misdiagnosed as gastritis (6.7%) and 4 cases were misdiagnosed as costochondritis (2.9%). In 15 cases, diagnosis of aortic dissection was only confirmed during autopsy (11%). Cardiac arrest occurred in 14 cases (10%) and permanent neurologic injury was recorded in 14 cases (10%). Strokes occurred in 9 cases (6.7%), and cardiac tamponade occurred in 14 cases (10%). These data are presented in Table 1. TABLE 2. Fisher exact test of factors associated with defendant verdict Defendant verdict (n ¼ 77), % (n)
P value
Patient mortality
83.1 (64)
.068
Failure to diagnose
67.5 (52)
.852
Failure to test
20.8 (16)
.023
Failure to interpret tests
10.4 (8)
.365
Delayed treatment
31.1 (24)
.662
Procedural error
11.7 (9)
.696
Failure to refer
6.49 (5)
.026
Failure to consult
5.19 (4)
.024
Failure to transfer
2.60 (2)
.368
Parameter
Failure to properly monitor
6.49 (5)
.968
Failure to obtain informed consent
6.49 (5)
.968
Failure to properly discharge
10.4 (8)
.484
Cardiac arrest
12.9 (10)
.927
Stroke
2.60 (2)
.033
Autopsy diagnosis
5.19 (4)
.012
Stanford type A classification
61.0 (47)
.163
Stanford type B classification
31.2 (24)
.981
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DISCUSSION Medical malpractice litigations arise when the patient or their family believes the medical care they received deviated from an acceptable standard of care. In demanding and time-sensitive circumstances, such as the treatment of aortic dissection, the acceptable standard of medical care can be overshadowed by the ultimate outcome to patients and their families. Therefore, an unfavorable outcome sustained by the patient, such as death, can induce a family to file a medical malpractice litigation primarily on the basis of the outcome. Although aortic dissection is considered a potentially fatal condition, there is uncertainty about specific aspects of clinical care in the treatment of aortic dissection that patients find to be below the acceptable standard of care, consequently emboldening them to file a medical malpractice litigation. Of the 135 cases included, 57% were resolved with a defendant verdict. Therefore, the interpretation of facts presented in a trial resulted in a ruling that affirms defendant physicians upheld acceptable standards of care, and injuries sustained by patients were not the result of errors or avoidable practices of defendant physicians in 57% of medical malpractice cases concerning aortic dissection. Furthermore, 23% of cases were resolved with settlements, which are agreements both parties agree to preceding formal completion of judicial proceedings. Settlements are typically smaller in award size than plaintiff awards and can be influenced by progress of trial, media exposure, or other external variables. In the absence of these external factors, if a plaintiff believes they can receive a superior award through trial, they will likely refuse preemptive settlements; however, only 20% of cases were ruled in favor of the plaintiff. This exemplifies how many cases are resolved with defendant verdicts, reflective of the court receiving sufficient evidence from the defendants to rule that medical malpractice did not occur, leading to avoidable injuries sustained by the patients. Therefore, a potential explanation for the frequency of these litigations, despite courts being unable to rule medical malpractice transpired, could be unfavorable patient outcomes associated with aortic dissection, which is often patient mortality.
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Geographic Distribution of Cases
WA 3 WI 1 NE 2 NV 1
LA 1
UT 1
MO 4
AZ 1
AR 1
IN 3
IL 16
CA 20
TX 6
MI 10
TN 1
PA 13
OH 8
MD 2
VA 2
KY 1
NJ 9
MA CT 3 1
SC 1
AL 4
LA 2
NY 11
AK 1
1
20
FIGURE 2. Number of aortic dissection–related medical malpractice cases by state, between 1994 and 2019, in the United States, and present in the Westlaw database. California had the most cases (15%), followed by Illinois (12%), Pennsylvania (9.6%), and New York (8.1%).
With regards to award sizes, plaintiff awards had an average of $2,192,944 and settlements had an average award of $1,303,714, which is justified by the notion of plaintiffs refusing settlements if they believe they can attain a larger plaintiff award, in the absence of uncontrollable factors that pressure them to accept a settlement.
Impact of Patient Mortality on Verdict
2 Plaintiff Award 25
Settlement 29
13 Defendant Award 64
Number of Cases Survived
Died
FIGURE 3. Patient mortality status and the corresponding verdict. Among 118 cases with patient mortality, defendant verdicts were reached in 64 cases (54%), plaintiff verdicts were reached in 25 cases (21%), and 29 cases were resolved by settlements (25%). Among 17 cases without patient mortality, defendant verdicts were reached in 13 cases (76%), plaintiff verdicts were reached in 2 cases (12%), and 2 cases were resolved with settlements (12%).
Award Size in Millions ($)
Verdict
Impact of Patient Mortality on Award Size 7
2
5.94
6 5 4 3
2.25
2 1 0
1.89
1.23 0
0
Defendant Award
Settlement
Plaintiff Award
Verdict Died
Survived
FIGURE 4. Patient mortality status and the corresponding award size. Presence of patient mortality was associated with greater plaintiff awards and greater settlement award sizes.
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64.4
11.1
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4.44
3.70
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30.4
28.1
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Case Count
Alleged Basis for Litigation 100 90 80 70 60 50 40 30 20 10 0
Alleged Basis for Litigation FIGURE 5. Alleged basis for filing an aortic dissection related medical malpractice litigation, sorted by each reason. % above bars. Failure to diagnose, delayed treatment, and failure to test were the most commonly cited reasons by plaintiffs for filing a litigation.
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Furthermore, average size of a plaintiff award or settlement was greater in cases in which the patient survived, often with disability, in comparison with cases in which the patient died. This is likely due to plaintiff awards and settlements accounting for future costs of care in cases with live patients. This is corroborated by permanent neurologic injury sustained by patients in 10% of cases. Therefore, future costs of care were likely influential during awardsize deliberations. A common challenge of aortic dissection is its initial undifferentiated presentation. For instance, chest pain was the chief complaint in many cases, but it did not indicate to physicians that aortic dissection was the underlying cause because it is not unique to aortic dissection and is a frequent symptom of many other conditions.28,29 This increases the likelihood of misdiagnoses, namely as gastritis or costochondritis in this study, which occurred in 9 cases and 4 cases respectively. Misdiagnoses contributed to plaintiffs claiming defendant physicians failed to timely diagnose an aortic dissection. Failure to timely diagnose an aortic dissection was argued by plaintiffs in 87 cases, which was also the most frequently recorded alleged reason for litigation. Furthermore, in 15 cases, aortic dissection was only diagnosed during autopsy. In addition to a defendant physician’s failure to diagnose, plaintiffs cited other reasons for litigation. In 41 cases, the plaintiffs claimed defendant physicians delayed treatment and in 38 cases, plaintiffs claimed defendant physicians failed to order diagnostic tests, contributing to the patient suffering an unfavorable injury, presented in Figure 6. Therefore, there is potential utility in engaging with 6
diagnostic tests that rapidly assesses for presence of aortic dissection, among other acute aortic diseases; drawing attention to approaches such as “triple rule-out” computed tomography scans for aortic dissection, myocardial infarction, and pulmonary embolism.30 With regards to patients’ demographic characteristics, there was a majority of male patients (67%) and an average age of 49 years. There was no predictive cyclic behavior with regards to the chronological distribution of cases, with the largest number of cases in 2017 (9). California had the most cases (15%), followed by Illinois (12%), Pennsylvania (9.6%), and New York (8.1%). In terms of state populations, California has nearly 40 million, Texas nearly 30 million, Florida slightly more than 21 million, New York nearly 20 million, Pennsylvania nearly 13 million, and followed by Illinois at nearly 13 million as well.31 Therefore, Illinois having the second greatest number cases is noteworthy because Illinois does not have one of the largest state populations that justify its status as one of the leading states in terms of quantity of aortic dissection medical malpractice litigations. However, the geographic distribution is consistent with the number of hospitals in each state, which has a descending order of Texas, California, Florida, Pennsylvania, Ohio, Illinois, and New York.32 Limitations This study’s findings are substantiated on the comprehensive nature of the Westlaw database, which despite being a leading provider of legal analysis also has limitations. First, not all Westlaw court documents consistently record specifics on interventions, preventing more clinical data from
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being included in this study. Furthermore, not all medical malpractice cases are captured in Westlaw. This is because cases that fail to gain court discretion could be prevented from being included in Westlaw. In addition, Westlaw does not include cases dropped before formal registration in the court system or resolved outside of the legal system. For a case to be included in the Westlaw database, it needs to have progressed to trial. Approximately 55% of medical malpractice suits progress to trial and obtain a verdict, which enables Westlaw to document them.22 Therefore, the aortic dissection medical malpractice cases that we analyzed in this study are limited to the offerings of the Westlaw database and do not represent all aortic dissection medical malpractice cases. In fact, it may only consider a small minority of cases resulting in litigation after aortic dissection. Since many settlements are resolved confidentially before trial, perhaps roughly 5% to 10% of malpractice cases may be included in Westlaw. However, the data are still informative of general litigation trends in aortic dissection medical malpractice cases because the Westlaw database is one of the largest and most comprehensive legal databases commercially available. Informing clinical providers of the reasons why plaintiffs file medical malpractice claims, among other litigation characteristics, is particularly relevant because for cases resolved outside courts or before reaching a formal trial, such information is
nonpublic and inaccessible to the broader community of clinical providers. Second, there are barriers for patients impeding them from filing a medical malpractice claim. This could be financial hardship, emotional hardship, reluctance to file a medical malpractice claim against a physician with whom they might have future follow-up visits, and social barriers.2,33,34 Third, there is a possibility of aortic dissection being present in other medical malpractice cases but are never diagnosed or misdiagnosed as another condition and never rectified, even postmortem. This would prevent them from inclusion in this study because they would not contain any records identifying them as aortic dissection. Another source of medical malpractice cases is the National Practitioner Data Bank, an online database maintained by the US Congress. However, reports are confidential and unavailable to the public. Apart from the National Practitioner Data Bank, insurance companies are another source of medical malpractice data, but there is skepticism arising from potential bias in insurance companies selectively releasing data. Although the number of medical malpractice cases related to aortic dissection in this study is likely lower than the actual number of filed medical malpractice cases related to aortic dissection, there is currently a lack of access to a more comprehensive legal database. Therefore, the Westlaw database still holds
Medical Malpractice Litigations involving Aortic Dissection
• Medical malpractice litigations arise when a discrepancy exists between a patient’s expectation of acceptable medical care and the care the patient receives.
Number of Litigations
Alleged Basis for Litigation 100 90 80 70 60 50 40 30 20 10 0
64.4%
30.4%
28.1% 11.9%
11.9%
11.1%
10.4%
Failure to Failure to Failure to Delayed Procedural Failure to Failure to Diagnose Test Interpret Treatment Error Refer Consult Tests
• 135 unique litigations were included from the Westlaw legal database to analyze medical malpractice litigations involving aortic dissection. • 57% had defendant verdicts • 20% had plaintiff verdicts • 23% were resolved with settlements
Geographic Distribution of Cases WA 3 WI 1 NE 2 NV 1
• Patient mortality was associated with a lower average plaintiff award size and a lower average settlement size. • Alleged failure to test, failure to refer, failure to consult, incidence of stroke, and incidence of an autopsy diagnosis were significantly associated with defendant verdicts (P < .05).
UT 1
MO 4
CA 20
AR 1
AZ 1 TX 6 AK 1
1
LA 1
LA 2
IL 16
MI 10 IN 3
TN 1 AL 4
NY 11 PA 13
OH 8
VA 2
KY 1
MA CT 3 1 NJ MD 9 2
SC 1
FL 6
20
FIGURE 6. Alleged failure to test, failure to refer, failure to consult, incidence of stroke, and autopsy diagnosis are associated with defendant verdicts in aortic dissection medical malpractice litigations.
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potential as a valid conduit for collecting and analyzing medical malpractice litigation data. This research represents one of few published studies in medical malpractice litigation involving cardiothoracic surgery, and to the best of our knowledge, this is the first study specifically investigating medical malpractice involving aortic dissection. Further research analyzing individual cases, akin to a legal case note, would be of interest in demarcating specific actions of physicians, on an individual patient level, that resulted in a plaintiff’s verdict or settlement.
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8.
9. 10.
11.
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CONCLUSIONS Aortic dissection is a potentially fatal condition that is often misdiagnosed and consequently associated with significant amounts of stress and fear for patients, and a poor outcome, even in the presence of excellent care. This can induce patients or their families to file medical malpractice claims despite an absence of acts conducted by defendant physicians who have deviated from an accepted standard of care. Accurate and timely diagnosis and treatment of aortic dissection in a patient with aortic dissection would address frequently cited reasons for filing medical malpractice litigation. Thus, educating physicians evaluating patients with suspected dissection, promptly referring to a cardiothoracic surgeon who is able to appropriately treat these patients, and stressing the importance of surgeons assessing these patients to intervene in a timely manner may reduce the incidence of medical malpractice claims.
12.
13.
14.
15. 16.
17.
18.
Conflict of Interest Statement The authors reported no conflicts of interest. The Journal policy requires editors and reviewers to disclose conflicts of interest and to decline handling or reviewing manuscripts for which they may have a conflict of interest. The editors and reviewers of this article have no conflicts of interest.
19.
20.
21.
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College of Radiology, American Stroke Association, Society of Cardiovascular Anesthesiologists, Society for Cardiovascular Angiography and Interventions, Society of Interventional Radiology, Society of Thoracic Surgeons, and Society for Vascular Medicine. J Am Coll Cardiol. 2010;55:e27-129. Zhan S, Hong S, Shan-Shan L, Chen-Ling Y, Lai W, Dong-Wei S, et al. Misdiagnosis of aortic dissection: experience of 361 patients. J Clin Hypertens (Greenwich). 2012;14:256-60. Fukui T. Management of acute aortic dissection and thoracic aortic rupture. J Intensive Care. 2018;6:15. Erbel R, Aboyans V, Boileau C, Bossone E, Bartolomeo RD, Eggbrecht H, et al. 2014 ESC guidelines on the diagnosis and treatment of aortic diseases: document covering acute and chronic aortic diseases of the thoracic and abdominal aorta of the adult. The task force for the diagnosis and treatment of aortic diseases of the European Society of Cardiology (ESC). Eur Heart J. 2014;35:2873-926. Di Eusanio M, Trimarchi S, Patel HJ, Hutchison S, Suzuki T, Peterson MD, et al. Clinical presentation, management, and short-term outcome of patients with type A acute dissection complicated by mesenteric malperfusion: observations from the international registry of acute aortic dissection. J Thorac Cardiovasc Surg. 2013;145:385-90. Masuda M, Okumura M, Doki Y, Endo S, Hirata Y, Kobayashi J, et al. Thoracic and cardiovascular surgery in Japan during 2014: annual report by The Japanese Association for Thoracic Surgery. Gen Thorac Cardiovasc Surg. 2016;64:665-97. Trimarchi S, Nienaber CA, Rampoldi V, Myrmel T, Suzuki T, Mehta RH, et al. Contemporary results of surgery in acute type A aortic dissection: the international registry of acute aortic dissection experience. J Thorac Cardiovasc Surg. 2005;129:112-22. Chiappini B, Schepens M, Tan E, Amore AD, Morshuis W, Dossche K, et al. Early and late outcomes of acute type A aortic dissection: analysis of risk factors in 487 consecutive patients. Eur Heart J. 2005;26:180-6. Nienaber CA, Kische S, Ince H, Fattori R. Thoracic endovascular aneurysm repair for complicated type B aortic dissection. J Vasc Surg. 2011;54:1529-33. Hanna JM, Andersen ND, Ganapathi AM, McCann RL, Hughes GC. Five-year results for endovascular repair of acute complicated type B aortic dissection. J Vasc Surg. 2014;59:96-106. Fattori R, Tsai TT, Myrmel T, Evangelista A, Cooper JV, Trimarchi S, et al. Complicated acute type B dissection: is surgery still the best option? A report from the international registry of acute aortic dissection. JACC Cardiovasc Interv. 2008;1:395-402. DeBakey ME, Henly WS, Cooley DA, Morris GC, Crawford ES, Beall AC. Surgical management of dissecting aneurysms of the aorta. J Thorac Cardiovasc Surg. 1965;49:130-49. Mody PS, Wang Y, Geirsson A, Kim N, Desai MM, Gupta A, et al. Trends in aortic dissection hospitalizations, interventions, and outcomes among Medicare beneficiaries in the United States, 2000-2011. Circ Cardiovasc Qual Outcomes. 2014;7:920-8. Afifi RO, Sandhu HK, Leake SS, Boutrous ML, Kumar V, Azizzadeh A, et al. Outcomes of patients with acute type B (DeBakey III) aortic dissection: a 13year, single-center experience. Circulation. 2015;132:748-54. Wheeler RE Jr. Does WestlawNext really change everything: the implications of WestlawNext on legal research. L Libr J. 2011;103:359-77. Jena AB, Chandra A, Lakdawalla D, Seabury S. Outcomes of medical malpractice litigation against US physicians. Arch Intern Med. 2012;172:892-4. Phair J, Trestman EB, Skripochnik E, Lipsitz EC, Koleilat I, Scher LA. Why do vascular surgeons get sued? Analysis of claims and outcomes in malpractice litigation. Ann Vasc Surg. 2018;51:25-9. He P, Mah-Ginn K, Karhade DS, Donoff B, Adeeb N, Gupta R, et al. How often do oral maxillofacial surgeons lose malpractice cases and why? J Oral Maxillofac Surg. 2019;77:2422-30. Rynecki ND, Coban D, Gantz O, Gupta R, Ayyaswami V, Prabhu AV, et al. Medical Malpractice in orthopedic surgery: a Westlaw-based demographic analysis. Orthopedics. 2018;41:e615-20. Grauberger J, Kerezoudis P, Choudhry AJ, Alvi MA, Nassr A, Currier B, et al. Allegations of failure to obtain informed consent in spinal surgery medical malpractice claims. JAMA Surg. 2017;152:e170544. Agarwal N, Gupta R, Agarwal P, Matthew P, Wolferz R Jr, Shah A, et al. Descriptive analysis of state and federal spine surgery malpractice litigation in the United States. Spine (Phila Pa 1976). 2018;43:984-90. Criado FJ. Aortic dissection: a 250-year perspective. Tex Heart Inst J. 2011;38: 694-700. Alter SM, Eskin B, Allegra JR. Diagnosis of aortic dissection in emergency department patients is rare. West J Emerg Med. 2015;16:629-31.
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33. Huntington B, Kuhn N. Communication gaffes: a root cause of malpractice claims. Proc (Bayl Univ Med Cent). 2003;16:157-61. 34. Moore PJ, Adler NE, Robertson PA. Medical malpractice: the effect of doctorpatient relations on medical patient perceptions and malpractice intentions. West J Med. 2000;173:244-50.
Key Words: aortic dissection, cardiothoracic surgery, medical malpractice
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30. Elefteriades JA, Barrett PW, Kopf GS. Litigation in nontraumatic aortic diseases—a tempest in the malpractice maelstrom. Cardiology. 2008;109:263-72. 31. United States Census Bureau. North Carolina Becomes Ninth State With 10 Million or More People, Census Bureau Reports. Available at: https://www. census.gov/newsroom/press-releases/2015/cb15-215.html. Accessed September 23, 2020. 32. Kaiser Family Foundation. Total Hospitals. Available at: https://www.kff.org/ other/state-indicator/total-hospitals/?currentTimeframe¼0&sortModel¼%7B% 22colId%22:%22Total%20Hospitals%22,%22sort%22:%22desc%22%7D. Accessed September 23, 2020.
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Medical malpractice litigations involving aortic dissection Ashwin Palaniappan, BA, and Frank Sellke, MD, Providence, RI Alleged failure to test, failure to refer, failure to consult, incidence of stroke, and autopsy diagnosis are associated with defendant verdicts and a failure to diagnose is associated with plaintiff verdicts in aortic dissection medical malpractice litigations.
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Medical malpractice litigations involving aortic dissection Ashwin Palaniappan, BA,a and Frank Sellke, MDa,b ABSTRACT
Geographic Distribution of Cases
WA 3
Objectives: Medical malpractice litigation arises when a discrepancy exists between a patient’s expectation of acceptable medical care and the care the patient receives. Aortic dissection is a frequently misdiagnosed and often-fatal condition. The purpose of this study was to characterize trends of medical malpractice litigations arising from aortic dissection, investigate the etiology, and analyze predictive factors regarding the verdict. Methods: The Westlaw legal database was used to compile relevant litigations from 1994 to 2019 across the United States. Each litigation was screened individually for inclusion, and after inclusion, descriptive factors were compiled, including patient data, litigation data, verdict data, and clinical outcomes data. The Fisher exact test was used to evaluate the significance of association between parameters and verdict type.
WI 1 NE 2 NV 1
UT 1
LA 1 MO 4
CA 20 AR 1
AZ 1 TX 6
LA 2
IL 16
MI 10 IN 3
TN 1
VA 2
KY 1
AL 4
AK 1
1
NY 11 PA 13
OH 8
MD 2
NJ 9
MA CT 3 1
SC 1
FL 6
20
Geographic distribution of medical malpractice cases involving aortic dissection.
CENTRAL MESSAGE
icantly associated with plaintiff verdicts (P < .05). Conclusions: Plaintiffs frequently cited a failure to timely diagnose, order diagnostic tests, and interpret diagnostic tests as reasons for litigations. Defendant verdicts were common, suggesting judicially acceptable standards of care are commonly satisfied. (J Thorac Cardiovasc Surg 2020;-:1-9)
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Alleged failure to test, failure to Results: In total, 135 unique litigations met criteria for inclusion, with a defendant refer, failure to consult, incidence verdict in 57% (n ¼ 77), plaintiff verdict in 20% (n ¼ 27), and settlements in of stroke, and autopsy diagnosis 23% (n ¼ 31). Plaintiffs most commonly cited a failure to diagnose as their reason are associated with defendant for litigation in 64% (n ¼ 87). Patient mortality was associated with a lower average plaintiff award, $1,892,781 versus $5,944,983, and a lower average settlement, verdicts and a failure to diagnose $1,230,923 versus $2,250,000, than their surviving counterparts. California, Illinois, is associated with plaintiff verand Pennsylvania had the most cases filed. An alleged failure to test, failure to refer, dicts in aortic dissection medical failure to consult, incidence of a stroke, and incidence of an autopsy diagnosis were significantly associated with defendant verdicts and a failure to diagnose was signif- malpractice litigations. PERSPECTIVE Medical malpractice litigation is common in cardiothoracic surgery and is disproportionately represented in potentially fatal conditions. However, research regarding medical malpractice litigation in cardiothoracic surgery is scarce. This study analyzes the etiology and characteristics of medical malpractice litigations relating to aortic dissection from 1994 to 2019 in the Westlaw legal database. See Commentary on page XXX.
Medical malpractice litigation is relatively common in cardiothoracic surgery, especially when compared with that in other specialties.1 Medical malpractice litigations are associated with a host of stressors for physicians and are filed in response to a perceived unfavorable outcome by the patient or patient’s family.2,3 Aortic dissection is an uncommon condition with an incidence of approximately From aAlpert Medical School, Brown University; and bDivision of Cardiothoracic Surgery, Rhode Island Hospital, Providence, RI. Received for publication Sept 1, 2020; revisions received Sept 28, 2020; accepted for publication Oct 8, 2020. Address for reprints: Ashwin Palaniappan, BA, Mail #5982, 69 Brown St, Providence, RI 02906 (E-mail: [email protected]). 0022-5223/$36.00 Copyright Ó 2020 by The American Association for Thoracic Surgery https://doi.org/10.1016/j.jtcvs.2020.10.064
7.7 cases yearly per 100,000.4 However, dissection is disproportionately associated with medical malpractice litigation.5,6 Acute aortic dissection often presents with symptoms that overlap with other conditions, such as acute coronary syndrome, costochondritis, and pulmonary embolus.7 Consequently, diagnosing aortic dissection may be complex or difficult. Acute aortic dissection often presents in an atypical manner, such that the initial treating physician does not consider it in the differential diagnosis.8 Type A dissections are more commonly associated with cardiac complications such as aortic valve regurgitation, myocardial infarction, and tamponade.9 Neurologic injuries are present in 10% to 40% of type A dissection, one half of which are transient injuries.10,11 Mesenteric ischemia is
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present in less than 5% of patients with either type A or type B dissections, but the in-hospital mortality of patients with mesenteric ischemia (63%) is nearly 3-fold greater than that of patients without mesenteric ischemia (24%).11 Surgical intervention is currently considered the gold standard for the management of type A dissection, with a 50% mortality within the first 48 hours if surgery is not performed.10 Unfortunately, surgical intervention does not guarantee successful management, with an early mortality after surgery of 9% to 25%.12-14 For patients presenting with complicated aortic type B aortic dissection, thoracic endovascular aortic repair has demonstrated improved outcomes.15-17 This represents a shift from primary initial medical management for acute type B aortic dissection.18,19 Although medical management of type B dissection is the recommended treatment of uncomplicated type B dissection, the mortality remains approximately 15% at 1 year.20 Despite the high incidence of misdiagnosis and mortality of aortic dissection, there is a paucity of data regarding associated trends of medical malpractice. This study presents data on medical malpractice litigations involving aortic dissection in the United States and aims to identify trends among this cohort of litigations from the Westlaw database. METHODS Search Methodology The online Westlaw legal research service (Thomson Reuters, Eagan, Minn) was used to compile medical malpractice litigations involving aortic dissection. Westlaw consists of more than 40,000 online legal databases, with judicial documents including court rulings, dockets, verdict summaries, appellate court documents, trial court memoranda, appellate decisions, settlement summaries, pretrial statements, and legal commentaries. Both US federal court and state court documents are accessible in the Westlaw database and are provided by commercial vendors and attorneys. The geographic jurisdiction of the Westlaw search used in this study encompassed all US states and territories. The expansive nature of the Westlaw database labels it as a heavily used resource for lawyers and legal professionals for comprehensive legal research.21 However, inclusion into the Westlaw database is contingent on court discretion, and Westlaw does not include litigations that were resolved before being formally recorded in court, meaning it did not consume court time.22 The Westlaw legal database has been employed for other studies concerning medical malpractice in the fields of vascular surgery, oral maxillofacial surgery, orthopedic surgery, and neurosurgery.23-27 Therefore, the present analysis in this study is limited to cases available to the Westlaw database, suggesting the true number of medical malpractice cases involving aortic dissection could be much greater than the number of cases reported in this study. Medical malpractice cases that were resolved by both parties outside of the legal system, dismissed before proceeding to a trial, or resolved before registration in the legal system are unavailable in Westlaw. However, Westlaw was chosen for this study over other online legal databases (ie, LexisNexis, Bloomberg Law, VerdictSearch) because of its comprehensive nature, acceptance and reputation within legal research, and previous validation in medical malpractice studies for other surgical subspecialties.21-27 This study investigated medical malpractice litigations involving aortic dissection in the United States from January 1, 1994, to December 31,
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2019, on both federal- and district-level courts. The search was conducted through the Boolean-based search engine of the Westlaw database, with the terms “aortic/s dissection” to yield the greatest number of litigations relating to aortic dissection, and the ‘/s’ signifies that “aortic,” or a variant of the term “aortic,” and “dissection” appeared in the same sentence. If the sentence conditional was not imposed, a large number of irrelevant litigations with aortic conditions would result, and they would not necessarily be aortic dissection, but rather be other aortic anomalies or conditions. The resulting litigations were manually and individually screened for inclusion in the study, and data were extracted from each one.
Data Collection and Statistical Analysis Each litigation had a host of characteristics that were recorded and compiled. Demographic characteristics such as patient age, sex, mortality, state, and date were recorded. In addition, features such as verdict, award size of plaintiff awards, award size of settlements, alleged reasons for litigation by the plaintiff, underlying and pre-existing conditions of the patient, and clinical outcomes after medical care were recorded. Failure to timely diagnose refers to situations in which plaintiffs argue an unnecessary delay between presentation and diagnosis allowed for the patient’s condition to deteriorate. Failure to interpret tests is defined as a defendant physician ordering diagnostic tests but failing to appreciate either the presence or severity of aortic dissection and consequently not intervening in an appropriate manner. Delayed treatment refers to an inexplicable delay between diagnosis and treatment allowing the patient’s condition to deteriorate or suffer an injury. Procedural errors are defined as avoidable errors, such as a dosing calculation with incorrect patient measurements or the use of improper instruments during procedures. Examples include an accepted error of a malpositioned cannula that was never rectified throughout the procedure, calculating dosages on incorrect patient measurements, and failing to maintain oxygenation to extremities during procedures. Congenital abnormalities were also separately recorded. Cognitive impairments and neurologic injury were documented under clinical outcomes. In addition to type of aortic dissection, alleged reasons for litigation, information about whether an elective surgery was performed, an unnecessary surgery was performed, and if a loss of consortium claim was filed were also recorded in this study. The Fisher exact test was used to evaluate the significance of association between parameters with verdict type, 2-tailed.
RESULTS Search Results The Westlaw database search with the term “aortic/s dissection” resulted in 184 litigations. Of these litigations, 29 litigations were duplicates, 11 litigations did not involve medical malpractice, and 9 litigations did not involve aortic dissection. Litigations not involving medical malpractice but had the term “aortic/s dissection” were all litigations relating to vehicular accidents. Litigations not involving aortic dissection were medical malpractice cases in which a physician’s note, which was submitted to court, makes reference to potential or previously suspected aortic dissection, but the patient was ultimately verified to not have an aortic dissection. Consequently, 135 unique litigations were included in this study for analysis. Patient Data Of the 135 included litigations from Westlaw, 90 had male patients (67%), 44 had female patients (33%), and 1 litigation had a patient of unknown sex as the alleged
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victim of medical malpractice. The average age of patients was 48.90 years, with a median of 49 years. Of the 135 litigations, 118 litigations had patients who died (87%) and 17 litigations had patients who survived (13%), reported in Table 1. Regarding the chronological distribution of cases, 2017 with 12 cases had the most cases (9%), followed by 2007 and 2005 with 10 cases each (7% each). This study looked at cases from 1994 to 2019 inclusive, a 26-year period, and the lowest number of cases recorded in a year was 1 case for 1994 and 2019 (Figure 1). Regarding the geographic distribution of cases, California with 20 cases had the most (15%), followed by Illinois with 16 cases (12%) and Pennsylvania with 13 cases (10%). 88 cases were Type A aortic dissection, with 47 defendant awards, 20 plaintiff awards, and 21 settlements (Table 2). A total of 34 cases were Type B aortic dissection, with 24 defendant awards, 3 plaintiff awards, and 7 settlements. The remaining 13 cases did not disclose type of aortic dissection in their court documents. Medical malpractice litigations involving aortic dissection in the Westlaw database were only recorded in 29 US states (Figure 2).
Verdicts Among the 135 cases, 77 cases had defendant verdicts (57%). In 27 cases, plaintiff verdicts were reached (20%), and the remaining 31 cases were resolved with
settlements (23%). The average size of settlements was $1,303,714, with a median of $855,000 and ranged from $185,000 to $6,500,000. Three settlements had confidential award sizes that were undocumented in court records. The average size of plaintiff awards was $2,192,944, with a median of $1,514,033 and ranged from $96,000 to $9,864,716. Verdicts by Mortality Patient mortality occurred in 118 cases of the total 135 cases. Among those 118 cases, defendant verdicts were reached in 64 cases (54%), plaintiff verdicts were reached in 25 cases (21%), and 29 cases were resolved by settlements (25%), as presented in Figure 3. The average size of settlements was $1,230,923, with a median of $855,000 and ranged from $185,000 to $6,500,000. Three of the cases were resolved with confidential settlements. The average size of plaintiff awards was $1,892,781, with a median of $1,500,000, and range of $96,000 to $5,400,000. In the remaining 17 cases in which patients survived, a verdict in favor of the defendant was reached in 13 cases (76%). There were 2 cases with plaintiff awards (12%) and 2 cases resolved with settlements (12%). The average plaintiff award size was $5,944,983 and ranged from $2,025,250 to $9,864,716. The average settlement size was $2,250,000 and ranged from $500,000 to $4,000,000. The relationship between patient mortality and award size is presented in Figure 4.
TABLE 1. Aortic dissection–related medical malpractice Parameter
Value number (%)
Patient demographics Female Median age, y Hypertension Marfan syndrome Other congenital abnormality Congestive heart failure
44 (33) 49 12 (8.9) 5 (3.7) 1 (0.7) 4 (2.9)
Patient mortality Died Survived
118 (87) 17 (13)
Cause for medical care Chest pain Shortness of breath
54 (40) 15 (11)
Clinical events Cardiac arrest Stroke Tamponade Pneumonia Permanent neurologic injury
14 (10.4) 9 (6.7) 14 (10.4) 5 (3.7) 14 (10.4)
Diagnosis Gastritis misdiagnosis Costochondritis misdiagnosis Autopsy diagnosis
9 (6.7) 4 (2.9) 15 (11.1)
Alleged Basis for Litigation Plaintiffs presented claims of medical malpractice, and most cases had multiple claims of medical malpractice. The most commonly cited reason of medical malpractice was failure to timely diagnose in 87 cases (64%). Following this, 41 cases had an alleged reason of delayed treatments (30%), 38 cases had an alleged reason of a failure to order diagnostic tests (28%), 16 cases had an alleged reason of a failure to interpret tests (12%), 16 cases had an alleged reason of a failure to refer to another physician (12%), 15 cases had an alleged reason of a procedural error (11%), 15 cases had an alleged reason of an improper discharge (11%), and 14 cases had an alleged reason of a failure to consult with another physician (10%), as reported in Figure 5. Table 2 presents the significance of association between parameters and defendant verdicts in the Fisher exact test, 2-tailed. A failure to test (P ¼ .023), failure to refer (P ¼ .026), failure to consult (P ¼ .024), incidence of a stroke (P ¼ .033), and incidence of an autopsy diagnosis (P ¼ .012) were significantly associated with defendant verdicts, presented in Table 2. Notably, failure to diagnose was significantly associated with plaintiff verdicts (P ¼ .015) and procedural error was significantly associated with settlements (P ¼ .016).
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Case Count
Chronological Distribution of Cases 14 12 10 8 6 4 2 0 1994
1999
2004
2009
2014
2019
Year FIGURE 1. Number of aortic dissection–related medical malpractice cases in the United States from 1994-2019. This figure highlights there is no predictive cycle or trend in the chronological distribution of medical malpractice cases involving aortic dissection from the Westlaw database.
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Clinical Attributes The chief complaint in 54 cases was chest pain (40%), and in 15 cases it was shortness of breath (11%). In 12 cases, the patient was noted to be severely hypertensive (8.9%). Six cases had patients with congenital conditions (4.4%), 5 of which were Marfan syndrome (3.7%). Four cases had patients with congestive heart failure (2.9%). Nine cases were misdiagnosed as gastritis (6.7%) and 4 cases were misdiagnosed as costochondritis (2.9%). In 15 cases, diagnosis of aortic dissection was only confirmed during autopsy (11%). Cardiac arrest occurred in 14 cases (10%) and permanent neurologic injury was recorded in 14 cases (10%). Strokes occurred in 9 cases (6.7%), and cardiac tamponade occurred in 14 cases (10%). These data are presented in Table 1. TABLE 2. Fisher exact test of factors associated with defendant verdict Defendant verdict (n ¼ 77), % (n)
P value
Patient mortality
83.1 (64)
.068
Failure to diagnose
67.5 (52)
.852
Failure to test
20.8 (16)
.023
Failure to interpret tests
10.4 (8)
.365
Delayed treatment
31.1 (24)
.662
Procedural error
11.7 (9)
.696
Failure to refer
6.49 (5)
.026
Failure to consult
5.19 (4)
.024
Failure to transfer
2.60 (2)
.368
Parameter
Failure to properly monitor
6.49 (5)
.968
Failure to obtain informed consent
6.49 (5)
.968
Failure to properly discharge
10.4 (8)
.484
Cardiac arrest
12.9 (10)
.927
Stroke
2.60 (2)
.033
Autopsy diagnosis
5.19 (4)
.012
Stanford type A classification
61.0 (47)
.163
Stanford type B classification
31.2 (24)
.981
4
DISCUSSION Medical malpractice litigations arise when the patient or their family believes the medical care they received deviated from an acceptable standard of care. In demanding and time-sensitive circumstances, such as the treatment of aortic dissection, the acceptable standard of medical care can be overshadowed by the ultimate outcome to patients and their families. Therefore, an unfavorable outcome sustained by the patient, such as death, can induce a family to file a medical malpractice litigation primarily on the basis of the outcome. Although aortic dissection is considered a potentially fatal condition, there is uncertainty about specific aspects of clinical care in the treatment of aortic dissection that patients find to be below the acceptable standard of care, consequently emboldening them to file a medical malpractice litigation. Of the 135 cases included, 57% were resolved with a defendant verdict. Therefore, the interpretation of facts presented in a trial resulted in a ruling that affirms defendant physicians upheld acceptable standards of care, and injuries sustained by patients were not the result of errors or avoidable practices of defendant physicians in 57% of medical malpractice cases concerning aortic dissection. Furthermore, 23% of cases were resolved with settlements, which are agreements both parties agree to preceding formal completion of judicial proceedings. Settlements are typically smaller in award size than plaintiff awards and can be influenced by progress of trial, media exposure, or other external variables. In the absence of these external factors, if a plaintiff believes they can receive a superior award through trial, they will likely refuse preemptive settlements; however, only 20% of cases were ruled in favor of the plaintiff. This exemplifies how many cases are resolved with defendant verdicts, reflective of the court receiving sufficient evidence from the defendants to rule that medical malpractice did not occur, leading to avoidable injuries sustained by the patients. Therefore, a potential explanation for the frequency of these litigations, despite courts being unable to rule medical malpractice transpired, could be unfavorable patient outcomes associated with aortic dissection, which is often patient mortality.
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Geographic Distribution of Cases
WA 3 WI 1 NE 2 NV 1
LA 1
UT 1
MO 4
AZ 1
AR 1
IN 3
IL 16
CA 20
TX 6
MI 10
TN 1
PA 13
OH 8
MD 2
VA 2
KY 1
NJ 9
MA CT 3 1
SC 1
AL 4
LA 2
NY 11
AK 1
1
20
FIGURE 2. Number of aortic dissection–related medical malpractice cases by state, between 1994 and 2019, in the United States, and present in the Westlaw database. California had the most cases (15%), followed by Illinois (12%), Pennsylvania (9.6%), and New York (8.1%).
With regards to award sizes, plaintiff awards had an average of $2,192,944 and settlements had an average award of $1,303,714, which is justified by the notion of plaintiffs refusing settlements if they believe they can attain a larger plaintiff award, in the absence of uncontrollable factors that pressure them to accept a settlement.
Impact of Patient Mortality on Verdict
2 Plaintiff Award 25
Settlement 29
13 Defendant Award 64
Number of Cases Survived
Died
FIGURE 3. Patient mortality status and the corresponding verdict. Among 118 cases with patient mortality, defendant verdicts were reached in 64 cases (54%), plaintiff verdicts were reached in 25 cases (21%), and 29 cases were resolved by settlements (25%). Among 17 cases without patient mortality, defendant verdicts were reached in 13 cases (76%), plaintiff verdicts were reached in 2 cases (12%), and 2 cases were resolved with settlements (12%).
Award Size in Millions ($)
Verdict
Impact of Patient Mortality on Award Size 7
2
5.94
6 5 4 3
2.25
2 1 0
1.89
1.23 0
0
Defendant Award
Settlement
Plaintiff Award
Verdict Died
Survived
FIGURE 4. Patient mortality status and the corresponding award size. Presence of patient mortality was associated with greater plaintiff awards and greater settlement award sizes.
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64.4
11.1
10.4
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4.44
4.44
3.70
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11.9
11.1
Fa ilu
11.9
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30.4
28.1
e
Case Count
Alleged Basis for Litigation 100 90 80 70 60 50 40 30 20 10 0
Alleged Basis for Litigation FIGURE 5. Alleged basis for filing an aortic dissection related medical malpractice litigation, sorted by each reason. % above bars. Failure to diagnose, delayed treatment, and failure to test were the most commonly cited reasons by plaintiffs for filing a litigation.
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Furthermore, average size of a plaintiff award or settlement was greater in cases in which the patient survived, often with disability, in comparison with cases in which the patient died. This is likely due to plaintiff awards and settlements accounting for future costs of care in cases with live patients. This is corroborated by permanent neurologic injury sustained by patients in 10% of cases. Therefore, future costs of care were likely influential during awardsize deliberations. A common challenge of aortic dissection is its initial undifferentiated presentation. For instance, chest pain was the chief complaint in many cases, but it did not indicate to physicians that aortic dissection was the underlying cause because it is not unique to aortic dissection and is a frequent symptom of many other conditions.28,29 This increases the likelihood of misdiagnoses, namely as gastritis or costochondritis in this study, which occurred in 9 cases and 4 cases respectively. Misdiagnoses contributed to plaintiffs claiming defendant physicians failed to timely diagnose an aortic dissection. Failure to timely diagnose an aortic dissection was argued by plaintiffs in 87 cases, which was also the most frequently recorded alleged reason for litigation. Furthermore, in 15 cases, aortic dissection was only diagnosed during autopsy. In addition to a defendant physician’s failure to diagnose, plaintiffs cited other reasons for litigation. In 41 cases, the plaintiffs claimed defendant physicians delayed treatment and in 38 cases, plaintiffs claimed defendant physicians failed to order diagnostic tests, contributing to the patient suffering an unfavorable injury, presented in Figure 6. Therefore, there is potential utility in engaging with 6
diagnostic tests that rapidly assesses for presence of aortic dissection, among other acute aortic diseases; drawing attention to approaches such as “triple rule-out” computed tomography scans for aortic dissection, myocardial infarction, and pulmonary embolism.30 With regards to patients’ demographic characteristics, there was a majority of male patients (67%) and an average age of 49 years. There was no predictive cyclic behavior with regards to the chronological distribution of cases, with the largest number of cases in 2017 (9). California had the most cases (15%), followed by Illinois (12%), Pennsylvania (9.6%), and New York (8.1%). In terms of state populations, California has nearly 40 million, Texas nearly 30 million, Florida slightly more than 21 million, New York nearly 20 million, Pennsylvania nearly 13 million, and followed by Illinois at nearly 13 million as well.31 Therefore, Illinois having the second greatest number cases is noteworthy because Illinois does not have one of the largest state populations that justify its status as one of the leading states in terms of quantity of aortic dissection medical malpractice litigations. However, the geographic distribution is consistent with the number of hospitals in each state, which has a descending order of Texas, California, Florida, Pennsylvania, Ohio, Illinois, and New York.32 Limitations This study’s findings are substantiated on the comprehensive nature of the Westlaw database, which despite being a leading provider of legal analysis also has limitations. First, not all Westlaw court documents consistently record specifics on interventions, preventing more clinical data from
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being included in this study. Furthermore, not all medical malpractice cases are captured in Westlaw. This is because cases that fail to gain court discretion could be prevented from being included in Westlaw. In addition, Westlaw does not include cases dropped before formal registration in the court system or resolved outside of the legal system. For a case to be included in the Westlaw database, it needs to have progressed to trial. Approximately 55% of medical malpractice suits progress to trial and obtain a verdict, which enables Westlaw to document them.22 Therefore, the aortic dissection medical malpractice cases that we analyzed in this study are limited to the offerings of the Westlaw database and do not represent all aortic dissection medical malpractice cases. In fact, it may only consider a small minority of cases resulting in litigation after aortic dissection. Since many settlements are resolved confidentially before trial, perhaps roughly 5% to 10% of malpractice cases may be included in Westlaw. However, the data are still informative of general litigation trends in aortic dissection medical malpractice cases because the Westlaw database is one of the largest and most comprehensive legal databases commercially available. Informing clinical providers of the reasons why plaintiffs file medical malpractice claims, among other litigation characteristics, is particularly relevant because for cases resolved outside courts or before reaching a formal trial, such information is
nonpublic and inaccessible to the broader community of clinical providers. Second, there are barriers for patients impeding them from filing a medical malpractice claim. This could be financial hardship, emotional hardship, reluctance to file a medical malpractice claim against a physician with whom they might have future follow-up visits, and social barriers.2,33,34 Third, there is a possibility of aortic dissection being present in other medical malpractice cases but are never diagnosed or misdiagnosed as another condition and never rectified, even postmortem. This would prevent them from inclusion in this study because they would not contain any records identifying them as aortic dissection. Another source of medical malpractice cases is the National Practitioner Data Bank, an online database maintained by the US Congress. However, reports are confidential and unavailable to the public. Apart from the National Practitioner Data Bank, insurance companies are another source of medical malpractice data, but there is skepticism arising from potential bias in insurance companies selectively releasing data. Although the number of medical malpractice cases related to aortic dissection in this study is likely lower than the actual number of filed medical malpractice cases related to aortic dissection, there is currently a lack of access to a more comprehensive legal database. Therefore, the Westlaw database still holds
Medical Malpractice Litigations involving Aortic Dissection
• Medical malpractice litigations arise when a discrepancy exists between a patient’s expectation of acceptable medical care and the care the patient receives.
Number of Litigations
Alleged Basis for Litigation 100 90 80 70 60 50 40 30 20 10 0
64.4%
30.4%
28.1% 11.9%
11.9%
11.1%
10.4%
Failure to Failure to Failure to Delayed Procedural Failure to Failure to Diagnose Test Interpret Treatment Error Refer Consult Tests
• 135 unique litigations were included from the Westlaw legal database to analyze medical malpractice litigations involving aortic dissection. • 57% had defendant verdicts • 20% had plaintiff verdicts • 23% were resolved with settlements
Geographic Distribution of Cases WA 3 WI 1 NE 2 NV 1
• Patient mortality was associated with a lower average plaintiff award size and a lower average settlement size. • Alleged failure to test, failure to refer, failure to consult, incidence of stroke, and incidence of an autopsy diagnosis were significantly associated with defendant verdicts (P < .05).
UT 1
MO 4
CA 20
AR 1
AZ 1 TX 6 AK 1
1
LA 1
LA 2
IL 16
MI 10 IN 3
TN 1 AL 4
NY 11 PA 13
OH 8
VA 2
KY 1
MA CT 3 1 NJ MD 9 2
SC 1
FL 6
20
FIGURE 6. Alleged failure to test, failure to refer, failure to consult, incidence of stroke, and autopsy diagnosis are associated with defendant verdicts in aortic dissection medical malpractice litigations.
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potential as a valid conduit for collecting and analyzing medical malpractice litigation data. This research represents one of few published studies in medical malpractice litigation involving cardiothoracic surgery, and to the best of our knowledge, this is the first study specifically investigating medical malpractice involving aortic dissection. Further research analyzing individual cases, akin to a legal case note, would be of interest in demarcating specific actions of physicians, on an individual patient level, that resulted in a plaintiff’s verdict or settlement.
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9. 10.
11.
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CONCLUSIONS Aortic dissection is a potentially fatal condition that is often misdiagnosed and consequently associated with significant amounts of stress and fear for patients, and a poor outcome, even in the presence of excellent care. This can induce patients or their families to file medical malpractice claims despite an absence of acts conducted by defendant physicians who have deviated from an accepted standard of care. Accurate and timely diagnosis and treatment of aortic dissection in a patient with aortic dissection would address frequently cited reasons for filing medical malpractice litigation. Thus, educating physicians evaluating patients with suspected dissection, promptly referring to a cardiothoracic surgeon who is able to appropriately treat these patients, and stressing the importance of surgeons assessing these patients to intervene in a timely manner may reduce the incidence of medical malpractice claims.
12.
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15. 16.
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18.
Conflict of Interest Statement The authors reported no conflicts of interest. The Journal policy requires editors and reviewers to disclose conflicts of interest and to decline handling or reviewing manuscripts for which they may have a conflict of interest. The editors and reviewers of this article have no conflicts of interest.
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Key Words: aortic dissection, cardiothoracic surgery, medical malpractice
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30. Elefteriades JA, Barrett PW, Kopf GS. Litigation in nontraumatic aortic diseases—a tempest in the malpractice maelstrom. Cardiology. 2008;109:263-72. 31. United States Census Bureau. North Carolina Becomes Ninth State With 10 Million or More People, Census Bureau Reports. Available at: https://www. census.gov/newsroom/press-releases/2015/cb15-215.html. Accessed September 23, 2020. 32. Kaiser Family Foundation. Total Hospitals. Available at: https://www.kff.org/ other/state-indicator/total-hospitals/?currentTimeframe¼0&sortModel¼%7B% 22colId%22:%22Total%20Hospitals%22,%22sort%22:%22desc%22%7D. Accessed September 23, 2020.
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Medical malpractice litigations involving aortic dissection Ashwin Palaniappan, BA, and Frank Sellke, MD, Providence, RI Alleged failure to test, failure to refer, failure to consult, incidence of stroke, and autopsy diagnosis are associated with defendant verdicts and a failure to diagnose is associated with plaintiff verdicts in aortic dissection medical malpractice litigations.
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