Medicolegal aspects of testicular torsion

PEDIATRIC UROLOGY

MEDICOLEGAL ASPECTS OF TESTICULAR TORSION JAMES R. MATTESON, JEFFREY A. STOCK, MONEER K. HANNA, THERESA V. ARNOLD, HARRIS M. NAGLER

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ABSTRACT Objectives. Testicular torsion is an active area of medical malpractice litigation because of the diagnostic uncertainty, delays in diagnosis and treatment, diagnostic errors, and resultant testicular loss. We reviewed this topic to determine the nature of patient claims and their clinical and legal outcomes. Methods. All closed case files of a large medical malpractice insurance company based in New Jersey involving testicular torsion from the years 1979 to 1997 were retrospectively reviewed. The following data were collected: patient demographics, timing of presentation, initial complaints, diagnosis given, consultations obtained, radiographic studies, treatment provided, outcomes, and indemnity payments. Results. Thirty-nine cases consisting of 58 individual claims were reviewed. Indemnity payments were made in 26 cases (67%), of which 25 (96%) were settlements, and 13 cases (33%) ended in favor of the physicians. Five cases went to trial, with only one verdict in favor of the plaintiff. The median indemnity payment was $45,000. Urologists were named most frequently (48%), and a misdiagnosis of epididymitis (61%) was most commonly cited. The mean patient age was 24.3 years. Atypical initial complaints were common (46%). Late presentation (greater than 8 hours) did not affect the medicolegal outcome. The major liabilities for paid claims were an error in diagnosis (74%), a delay in or lack of referral (48%), lack of radiologic examination (19%), failure to explore (13%), error in surgical technique or judgment (13%), and falsified records (10%). Conclusions. Testicular torsion litigation most often focuses on the urologist. Claims are more common in older patients and those with atypical complaints. Settlement is the most common outcome, with a fairly standard indemnity payment rewarded. The initial treating physician must have a high index of suspicion for the diagnosis and refer promptly. In lieu of a definitive radiologic study, or when the diagnosis is in question, the urologist should strongly consider exploration and should perform contralateral exploration when torsion is found. UROLOGY 57: 783–787, 2001. © 2001, Elsevier Science Inc.

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he actual frequency of malpractice claims filed for cases of testicular torsion (or missed torsion) is unknown; however, it is likely to represent a relatively common subject of litigation.1,2 The perception among practicing urologists that torsion is a legally hazardous entity is based primarily on shared personal anecdotes. Compiled data supporting this perception are lacking. Factors that make torsion an active area of litigation may include the urgency needed in its diagnosis and treatment, the diagnostic uncertainties, delays in presentation, a relatively common rate of

From the Department of Urology, Beth Israel Medical Center, New York, New York; Section of Urology, University of Medicine and Dentistry New Jersey, New Jersey Medical School, Newark; and Medical Inter-Insurance Exchange, Lawrenceville, New Jersey Reprint requests: Jeffrey A. Stock, M.D., 101 Old Short Hills Road, Suite 203, West Orange, NJ 07052 Submitted: May 1, 2000, accepted (with revisions): October 26, 2000 © 2001, ELSEVIER SCIENCE INC. ALL RIGHTS RESERVED

adverse outcome (testicular loss), and the psychologic impact related to the loss of a testis. We performed a retrospective review in an attempt to characterize the medicolegal aspects of cases of testicular torsion to determine the nature of these claims, their outcomes, and the evidence of medical negligence or malpractice in such cases. MATERIAL AND METHODS Claims data were obtained from the Medical Inter-Insurance Exchange, a large insurance company that insures more than 50% of the physicians in the state of New Jersey. Since 1977, the company has maintained a database composed of detailed case descriptions. All closed case files involving claims against physicians relating to testicular torsion during an 18-year period (1979 to 1997) were selected for analysis. No claims against institutions were analyzed, as only physician-based claims are included in the database. A case is an action brought on behalf of an individual, regardless of the number of defendants. A claim is an action brought by a single patient (plaintiff) against an individual physician (defendant). Therefore, a case often incorporates several claims. Figure 1 0090-4295/01/$20.00 PII S0090-4295(00)01049-9 783

TABLE I. Claims by specialty Specialty

Claims (n)

Urologists Emergency room physicians General practitioners Radiologists General surgery Pediatrics Internal medicine Gastroenterologists Pediatric surgeons Total

Claims Paid (n)

28 9

17 (61) 3 (33)

5 4 3 3 3 2 1 58

3 0 1 1 3 2 1 31

(60) (0) (33) (33) (100) (100) (100) (53)

Numbers in parentheses are percentages.

FIGURE 1. Malpractice litigation algorithm.

shows how malpractice litigation might proceed. Three outcomes for claims are possible: claim dropped, settlement, or procession to trial. Indemnity payments take the form of either settlement awards or jury awards. Information from these selected case files was collected and analyzed. The factors investigated included patient age, initial chief complaint, timing of presentation, diagnosis, consultations obtained, radiographic studies used, surgical treatment, surgical and pathologic findings, outcomes, and legal result. The time to presentation was defined as being from the onset of pain, and the times to referral, radiologic study, and surgery were defined as being from the initial presentation. Late presentations were defined as 8 hours after the onset of pain, the interval most frequently cited in published reports as the critical time after which testicular salvage rates decline precipitously.3–5 A “typical” case was defined as a patient presenting with the chief complaint of sudden-onset testicular pain regardless of other symptoms. Any other chief complaint was designated as an atypical case. The major liability or point of physician negligence was determined from the details weaned from the case record and the opinions in the peer review depositions and expert witness testimonies.

RESULTS A total of 39 closed cases representing 58 claims against individual physicians were identified. Twenty-six cases (67%) were against a single defendant, of whom 13 (50%) were urologists. Twenty-six cases (67%) encompassing 31 claims (53%) resulted in indemnity payments. Only 5 cases (13%) came to a summary judgment or jury trial, and the ruling was in favor of the plaintiff in only 1 case. Therefore, 25 (96%) of 26 cases in which an indemnity payment was made on behalf of a physician were settlements (Fig. 1). Nine cases were concluded with no payment made on the behalf of a physician. Urologists were most frequently named in the claims by specialty (Table I), and the rate of the indemnity payment was higher for urologists than for other specialties (61% versus 47%). The mean and median indemnity payment per 784

FIGURE 2. Age distribution of cases.

claimant was $60,191 and $45,000 (range $5000 to $250,000), respectively, for a total of $1,865,933. The mean defense cost was $10,785 per case, for a total of $420,615. The mean defense cost for cases that proceeded to trial and those that were settled or dropped was $41,918 and $6207, respectively. The total dollar expenditure, including indemnity payments and legal expenses, for all 39 cases was $2,286,528.00. The mean age of the patients was 24.3 years (Fig. 2). Atypical case presentations were common (18 of 39, 46%), and were more prevalent in cases in which no payment was made (9 of 13, 69% versus 9 of 26, 35%). Twelve cases (31%) were considered late presentations (greater than 8 hours), although the timing could not be determined from the case file in 13 cases (33%). Despite the late presentations, 9 cases (75%) still resulted in an indemnity payment. The most common misdiagnosis was epididymitis or epididymo-orchitis (28 of 39, 72%), of which three were designated as traumatic in origin (Table II). Intermittent torsion was considered in several UROLOGY 57 (4), 2001

TABLE II. Errors in diagnosis (n ⴝ 39 cases) Epididymitis Intermittent torsion Gastroenteritis Renal colic Appendicitis Testicular contusion Groin strain Abdominal contusion Prostatitis Urinary tract infection Spermatocele Incarcerated hernia

n

%*

28 5 3 2 1 1 1 1 1 1 1 1

72 13 8 5 3 3 3 3 3 3 3 3

* More than one diagnosis was given in many cases; percentage is rate of frequency of diagnosis in 39 cases.

cases, and multiple other diagnoses were considered sporadically. COMMENT The acute scrotum requires urgent evaluation and diagnosis. It has been said that acute scrotal pain in an adolescent represents testicular torsion until proved otherwise.6 Failure to rule out torsion by a qualified consultant should prompt surgical exploration. Because most acute scrotums do not result from torsion7 and because of the development of reliable but slightly imperfect radiologic techniques of nuclear medicine scintigraphy and ultrasound with color Doppler,8,9 the dictum that all acute scrotums should be explored is no longer absolute.10 However, when the diagnosis is equivocal, proper radiographic studies are not available, or clinical suspicion is strong despite diagnostic test results, exploration is advised. There is a perception that testicular loss secondary to torsion is a potential source of frequent medical malpractice claims. The true reported frequency of claims for testicular torsion is unknown and would be difficult to calculate. The overall incidence of medical malpractice varies greatly among specialties, with surgical subspecialties generally having higher rates of claims. In the state of New Jersey, the rate for urologists between 1977 and 1987 was 0.28 claims per physician per year, which ranked fifth behind neurosurgery (0.65), orthopedics (0.53), obstetrics-gynecology (0.40), and general surgery (0.30). Psychiatry had the lowest rate (0.05).11 In a self-reported anonymous survey of urologists listed in The Best Doctors in America and candidates for recertification by the American Board of Urology in 1996, the rate was reported to be 0.09 claims per physician per year in both groups.12 In a malpractice suit, negligence can be charged UROLOGY 57 (4), 2001

TABLE III. Liabilities in paid claims (n ⴝ 39) Missed diagnosis Improper referral No radiologic study Failure to explore Surgical error Falsified records Unable to determine

n*

%

23 15 6 4 4 3 1

74 48 19 13 13 10 3

* Multiple liabilities for most cases; therefore, total is greater than 39.

when a physician’s substandard performance results in adverse consequences for the aggrieved patient. The law relies on physicians to define what the professional community’s standard of practice is. Expert witness testimony is used to determine whether the individual physician’s actions were below that standard. The most common liability as determined from the defense’s risk exposure assessment, peer review, and expert witness testimony is a missed diagnosis. However, physicians were not held accountable solely on the basis of this error (Table III). When the error in diagnosis is associated with delayed referral, delayed treatment, or is not supported by a radiologic study, the physician is at considerable risk. Nonsurgical specialists were most often cited for failure to urgently refer and/or failure to obtain a radiologic study. In 1 case, a nuclear scan was misread as negative for torsion; however, no claim was paid because it was determined by expert reviewers that the patient probably had late torsion that was not salvageable at the time of presentation. In none of 4 cases in which radiologists were named was any payment made on their behalf. The falsification of records was noted in 3 cases. Clearly this is indefensible in any scenario. Urologists were most frequently faulted for failure to order a radiologic study, delayed exploration, or errors in surgical technique or judgment. Four paid claims on behalf of urologists were the direct result of surgical misadventure. One case was a surgical failure when ipselateral torsion recurred several years after successful detorsion and prophylactic fixation. Another case was failure to perform contralateral orchiopexy at the time of detorsion and fixation. The remaining 2 cases involved attempts to salvage a necrotic testis, resulting in the subsequent need for surgical debridement and abscess drainage. One of these cases required repeated debridement twice, and the patient subsequently developed atrophy of the remaining testis. This was the only case that received a jury award, which was by far the highest indem785

nity payment in the series with two urologists ordered to pay $250,000 each. The patients in this series had a mean age of 24.3 years and included 4 patients older than 40 years of age. This cohort was significantly older than the commonly observed torsion populations. The peak incidences are frequently reported to be in the first year after birth and in early adolescence, although the incidence with progressing age never reaches zero. It is likely that a lower suspicion for the diagnosis of torsion in older patients contributes to the diagnostic errors and delays. It has been shown that a delay in presentation on the part of the patient is inversely related to age.13 What is not known is whether older patients are more likely to file claims than younger patients or their parents. Patients presenting without a typical complaint of sudden-onset scrotal pain were relatively common. The rate of payment for cases with atypical presentations was one half the rate for typical presentations. This suggests that the cases were somewhat more defensible. However, cases with late presentations (greater than 8 hours) had a similar rate of payment (75%) as those with early presentations (64%) and those in which the timing of presentation could not be determined (62%). Despite the well-accepted negative effect of delayed presentation on the medical outcome, this aspect alone had no effect on the legal outcome. It is unclear why this had no effect, but often the plaintiff’s peer review pointed to the fact that a torsed testis may be salvaged after 12 or even 24 hours; therefore, the treating physician’s behavior should not be influenced until well after this period. CONCLUSIONS Testicular torsion is a common and costly area of malpractice litigation. The urologist bears the bulk of the litigation burden. Malpractice claims are much more common for patients older than the classic pediatric age groups and among those initially complaining of atypical symptoms. Several recommendations can be made on the basis of these data. The primary care physician must have a high suspicion for the diagnosis and refer early, appropriate diagnostic studies must be used, the urologist should strongly consider exploring the scrotum when the diagnosis is in question, a prophylactic contralateral orchiopexy should always be performed when torsion is found, and a necrotic testis should not be salvaged. None of these recommendations deviate from the standard teaching. Therefore, it is not necessary to practice defensive medicine, but sound medical practice is defensible. REFERENCES 1. Boyarsky S, Steinhardt GF, and Onder R: Medicolegal aspects of testicular torsion. Mo Med 6: 359 –362, 1990. 786

2. Zachary RB: Legal hazards of surgical paediatric practice. BMJ 812: 516 –518, 1972. 3. Cattoliga EV, Karol JB, and Rankin KN: High testicular salvage rate in torsion of the spermatic cord. J Urol 128: 66 – 68, 1982. 4. Cass AS, Cass BP, and Veeraraghavan K: Immediate exploration of the unilateral acute scrotum in young male subjects. J Urol 124: 829 – 832, 1980. 5. Tryfonas G, Violaki A, Tsikopoulos G, et al: Late postoperative results in males treated for testicular torsion during childhood. J Pediatr Surg 29: 553–556, 1994. 6. Schul MW, and Keating MA: The acute pediatric scrotum. J Emerg Med 11: 565–577, 1994. 7. Campobasso P, Donadio P, Spata E, et al: Acute scrotum in pediatric age: analysis of 265 consecutive cases. Pediatr Med Chir 18(5 suppl): 15–20, 1996. 8. Rosenson AS, Ali A, Fordham E, et al: A false-positive scan for testicular torsion and false-negative scan for epididymitis. Clin Nucl Med 15: 863– 864, 1990. 9. Herbener TE: Ultrasound in the assessment of the acute scrotum. Clin Ultrasound 24: 405– 421, 1996. 10. Kass EJ, Stone KT, Cacciarelli AA, et al: Do all children with an acute scrotum require exploration? J Urol 150: 667– 669, 1993. 11. Taragin MI, Wilczek AP, Karns ME, et al: Physician demographics and the risk of medical malpractice. Am J Med 93: 537–542, 1992. 12. Kaplan GW: Malpractice risks for urologists. Urology 51: 183–185, 1998. 13. Barada JH, Weingarten JL, and Cromie WJ: Testicular salvage and age-related delay in the presentation of testicular torsion. J Urol 142: 746 –748, 1989.

EDITORIAL COMMENT Reading this article from a legal, rather than a medical, viewpoint, two issues are quite striking. First, the position set forth in the initial sentence of the paper and the first sentence of the Conclusions section are disproved by the data analyzed by the authors. Thirty-nine closed cases during an 18-year period (1979 to 1997) hardly represent “a relatively common subject of litigation” or “a common and costly area of malpractice litigation.” Two cases annually from a company providing insurance coverage to more than 50% of New Jersey doctors would place testicular torsion as one of the least worrisome claims in that company’s medical malpractice portfolio. The experience with these claims in the Baltimore metropolitan area is similar to that in New Jersey. The infrequent occurrence of testicular torsion claims, together with the relatively small and stable amount of indemnity payments made to claimants, further diminishes an insurer’s concerns over this cause of action. This is, of course, no comfort to the urologists who find themselves defendants in such a lawsuit. The second salient point in the article is the apparent stability of the indemnity payments made to claimants. The authors do not relate when the claims were brought against the physicians, so the timing of the claims could have affected the totals and averages. That is, claims made in the 1980s should have been settled less expensively than those in the 1990s. As medical malpractice cases go, payments per claimant of $60,191 (mean) and $45,000 (median), with a range of $5,000 to $250,000, are relatively minor matters. (The $250,000 case reflected the value of the loss of both of the claimant’s testes. Had that jury been composed entirely of men, the award undoubtedly would have been much higher.) This is reinforced by the mean defense cost of $10,785, which demonstrates that such cases are not overly complex and can be defended and resolved inexpensively. UROLOGY 57 (4), 2001