- Email: [email protected]
Sociological and Medical Factors Influence Outcomes in Facial Trauma Malpractice
Sociological and Medical Factors Influence Outcomes in Facial Trauma Malpractice Alexander M. Mozeika, PharmD,* Devika Sachdev, BS,y Rijul Asri, BS,z Nicole Farber, BS,x and Boris Paskhover, MDk Purpose:
Medical error in the United States carries substantial economic and safety costs, which manifest in a large number of malpractice suits filed each year. The aim of this study was to characterize the various sociologic and medical factors that influence malpractice suits occurring from cases of facial trauma.
Materials and Methods:
This retrospective cohort study examined defendant data from facial trauma malpractice cases extracted from the Westlaw database, a database composed of representative federal litigations. Study variables of interest included geographic region, type of trial, injury category, and provider specialty, which were analyzed for impact on initial and final legal decisions. Descriptive statistics, Pearson c2 test, and Fisher t test were performed using SPSS.
Results:
Of the 69 defendants (76.8% men and 23.2% women; age range, 17 to 57 yr), which resulted from 53 claims, 12 (17.4%) involved plastic surgeons and 10 (14.5%) involved emergency physicians. Most complaints consisted of inadequate care that deviated from treatment standards (32 [46.4%]) and delayed diagnosis (24 [34.8%]). Of delayed diagnosis cases, 14 patients had radiographic imaging performed. Geographic location of the claim was statistically significant—the Midwest upheld 40% of complaints (P = .007) and the South dismissed 91.4% (P = .027).
Conclusions: The impact of sociologic factors, including geographic region, informed consent, and cosmesis, and medical factors, such as delayed diagnosis and deviation from standard of care, in facial trauma litigation were found to be incongruent with previous studies describing the medicolegal influences in facial plastic procedures. This analysis provides greater insight to surgical practitioners across subspecialty disciplines regarding the potential legal implications of malpractice. Ó 2019 American Association of Oral and Maxillofacial Surgeons J Oral Maxillofac Surg 77:1042.e1-1042.e10, 2019
After publication of the Institute of Medicine’s study To Err Is Human, the past 2 decades have witnessed increased attention on the notion and consequences of medical error, underscored by billions of dollars spent annually on malpractice-associated costs.1-3 These errors carry danger to patients, upward of
400,000 deaths reported per year, and nonlethal harm reported at a 10- to 20-times higher rate.4,5 Organizations, such as the Centers for Disease and Prevention and the Food and Drug Administration, have responded by introducing new policies and guidelines for health care providers6,7; however,
Received from Department of Otolaryngology–Facial Plastic and
Address correspondence and reprint requests to Dr Paskhover:
Reconstructive Surgery, Rutgers New Jersey Medical School,
Department of Otolaryngology–Facial Plastics and Reconstructive
Newark, NJ.
Surgery, Rutgers New Jersey Medical School, 90 Bergen Street, Suite
*Medical Student. yMedical Student.
8100, Newark, NJ 07103; e-mail: [email protected] Received September 19 2018
zMedical Student.
Accepted January 3 2019
xMedical Student.
Ó 2019 American Association of Oral and Maxillofacial Surgeons
kAssistant Professor.
0278-2391/19/30007-2
Conflict of Interest Disclosures: None of the authors have any
https://doi.org/10.1016/j.joms.2019.01.005
relevant financial relationship(s) with a commercial interest.
1042.e1
1042.e2
MOZEIKA ET AL
medical errors, representing the third leading cause of death, continue to plague the current US health care landscape.8 The aftermath of medical error, mostly involving physician negligence, often plays out through malpractice suits.9,10 In 2016, nearly 43,000 cases totaling $3.8 billion in payouts were mainly awarded for allegations concerning diagnosis, treatment, and surgery,9 with the top 5 defendant specialties being surgical.11 Specifically, almost 15% of plastic surgeons face at least 1 malpractice suit each year compared with the 7% of total physicians facing a claim.11 The most common procedures identified in these claims involved the nose, skin, and breast, with an acrossthe-board focus on elective procedures.12 Previous studies have thoroughly examined litigation after medical error in plastic surgery and otolaryngology.13-16 Within facial plastics, malpractice claims have typically focused on the complaint of scarring or disfigurement, with more than 60% of cases ending in favor of the physician-defendant.17 Nevertheless, very sparse data exist on malpractice litigation within facial plastics, and even sparser data exist within the sub-discipline of facial trauma. Legal action after an emergency room visit has typically focused on diagnostic errors, with fractures being 1 of the top 3 missed diagnoses; more than two thirds of postemergency cases ended with neither payout nor trial, and of the 7% that went to trial, 85% of cases ended in favor of the physician-defendant.18 The purpose of the present study was to characterize medical malpractice within facial plastics, specifically in the sub-discipline of facial trauma. The authors hypothesized that factors influencing malpractice would be specific to subdisciplines and thus could not be generalized to entire fields. The aims were to analyze the impact of geographic region, patient and provider demographics, courtroom logistics, and medical factors on the outcomes of facial trauma malpractice cases.
Materials and Methods STUDY DESIGN
To address the research purpose, the authors designed and implemented a retrospective cohort review of medical malpractice cases. The sample population was composed of federal legal cases captured in a Westlaw legal database advanced search, with the term malpractice used in combination with the following exact-match terms: mandible fracture (n = 17), mandibular fracture (n = 6), maxilla fracture (n = 28), maxillary fracture (n = 1), orbital fracture (n = 8), orbital floor fracture (n = 2), nasal fracture (n = 16), nasal bone fracture (n = 1), frontal bone fracture (n = 1), fracture of the frontal bone (n = 3), tripod fracture (n = 1), zygomatic arch fracture
(n = 1), cheekbone fracture (n = 1), Le Fort (n = 53), facial trauma (n = 6), facial fracture (n = 33), nose fracture (n = 3), jaw fracture (n = 20), zygoma fracture (n = 1), facial laceration (n = 26), ethmoid fracture (n = 2), broken jaw (n = 68), orbits (n = 12), or broken nose (n = 33). Cases were included in the study if the presenting complaint was facial trauma and if a malpractice claim was filed in regard to the initial or subsequent management or complications of the facial trauma. Subject cases were excluded if the lawsuit was not related to the initial or subsequent management or complications of the facial trauma or if a substantial amount of incomplete information existed (Fig 1). VARIABLES
The primary predictor variables captured included state, type of injury, reason for malpractice claim, type of litigation, and medical specialty of the defendants and expert witnesses. The primary outcome variables captured included initial verdict, final verdict, and monetary awards and settlements. States were grouped into regions based on preset definitions provided by the US Census Bureau. Monetary awards and settlements were adjusted for inflation to December 2016 using a calculator available at the US Bureau of Labor Statistics’ website.19 Each injury was organized into 1 of 7 categories: ocular trauma, facial laceration, panfacial trauma, mandible fracture, maxilla or Le Fort fracture, nasal fracture, or orbital fracture. The category panfacial trauma encompasses cases that resulted from the search term facial trauma or appeared in multiple searches. Each reason for malpractice claim was organized into 1 of the following categories: delay or failure to diagnose, failure to provide postoperative instructions or lack of follow-up care, delay in initiation of treatment, failure to monitor patient’s condition, failure to obtain a consult, wrongful death, lack of informed consent, foreign body left postoperatively, practicing outside of scope, Emergency Medical Treatment and Labor Act (EMTALA) violation, abandonment of patient, inadequate care or deviation from treatment standards, or unknown. The classification ‘‘inadequate care or deviation from treatment standards’’ was created to categorize cases that had nonspecific claims related to diagnosis or treatment. The classification ‘‘unknown’’ was used for cases that were captured from the authors’ malpractice search algorithm but lacked any rationale for the claim. DATA ANALYSIS
Frequency statistics were generated in SPSS (IBM Corp, Armonk, NY) for geographic location, medical specialty of defendant, specialty of expert witnesses, injury type, reason for malpractice claim, type of
1042.e3
FACTORS INFLUENCING FACIAL TRAUMA MALPRACTICE
FIGURE 1. Illustration of the identification and isolation of malpractice claims from the various advance searches performed in the Westlaw database. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
litigation, and initial verdict. Pearson c2 test and Fisher exact test were used for comparison of various outcomes. Because this study did not involve interaction with human participants and used only publicly available data from the Westlaw database, institutional review board approval was not required in accordance with the policies of the institutional review board of the Rutgers New Jersey Medical School (Newark, NJ).
Results GENERAL CHARACTERISTICS
From the advanced search, 343 results were obtained. Sixty-nine facial trauma cases met the inclusion and exclusion criteria, of which 53 unique defendants were named. Dates of cases ranged from 1913 to 2016, with 67 of 69 decisions made from 1965 to 2013. Table 1 presents the final legal outcomes of facial malpractice cases included in this study as a function of provider specialty, case type, geographic location,
initial diagnosis, and reason for suit. Of the cases examined, 50.7% of decisions were processed through legal systems in the southern United States, 29.0% in the mid-western United States, 11.6% in the western United States, and 8.7% in the northeastern United States (Fig 2). The most common providers involved as defendants were plastic surgeons (17.4%), emergency medicine physicians (14.5%), oral and maxillofacial surgeons (OMSs; 11.6%), otolaryngologists (10.1%), radiologists (8.7%), general surgeons (7.2%), ophthalmologists (5.8%), primary care physicians (4.3%), nurses (2.9%), anesthesiologists (1.4%), orthopedic surgeons (1.4%), and hospital administrators (1.4%); of the remaining cases, the defendant was unknown (13.0%). OMSs were involved only in mandibular fracture cases (100%; P = .001) and were not engaged in any panfacial trauma cases (0%; P = .044). Of the aforementioned injuries, nasal fractures were treated exclusively (100%; P = .009) by otolaryngologists (Table 2). Although 46.4% of cases did not involve an expert physician witness,
1042.e4
MOZEIKA ET AL
Table 1. CASE OUTCOMES AS A FUNCTION OF ALL STUDY PRIMARY PREDICTOR VARIABLES
Specialty Hospitalist (n = 1) EM (n = 10) ENT (n = 7) Orthopedic surgeon (n = 1) Ophthalmologist (n = 4) PCP (n = 3) Plastic surgeon (n = 12) OMS (n = 8) Radiologist (n = 6) General surgeon (n = 5) Nurse (n = 2) Anesthesiologist (n = 1) Unknown (n = 7) Bench Judge (n = 40) Jury (n = 26) Unknown (n = 3) Geographic location Midwest (n = 20) Northeast (n = 6) South (n = 35) West (n = 8) Reason for suit Delayed diagnosis (n = 24) Postoperative issues (n = 3) Delayed treatment (n = 1) Failure to monitor (n = 1) Inadequate care (n = 32) Failure to obtain consult (n = 1) Wrong diagnosis (n = 3) Lack of informed consent (n = 1) Wound (n = 1) Foreign body (n = 2) Out of scope (n = 1) EMTALA violation (n = 2) Patient abandoned (n = 1) Unknown (n = 7) Type of injury Eye trauma (n = 3) Facial laceration (n = 2) Facial trauma (n = 25) Mandible fracture (n = 30) Maxilla fracture (n = 1) Nasal fracture (n = 1) Orbital fracture (n = 6)
Dismissed (n = 52)
Upheld (n = 13)
1.9 19.2 9.6 0 7.7 3.8 13.5 11.5 11.5 3.8 3.8 1.9 11.5
0 0 7.7 7.7 0 7.7 30.8 7.7 0 15.4 0 0 23.1
71.2* 28.8* 0
Settled (n = 2)
Unknown (n = 2)
0 0 0 0 0 0 50 50 0 0 0 0 0
0 0 50 0 0 0 0 0 0 50 0 0 0
23.1* 76.9* 0
0 0 100*
0 50 50
17.3* 7.7 61.5* 13.5
61.5* 7.7 23.1* 7.7
100 0 0 0
50 50 0 0
40.4 3.8 1.9 0 44.2 1.9 3.8 1.9 1.9 3.8 0 1.9 0 9.6
23.1 7.7 0 0 69.2 0 7.7 0 0 0 7.7 0 7.7 0
0 0 0 50 0 0 0 0 0 0 0 0 0 50
0 0 0 0 0 0 0 0 0 0 0 50 0 50
5.8 3.8 34.6 40.4 1.9 1.9 11.5
0 0 38.5 61.5 0 0 0
0 0 50 50 0 0 0
0 0 50 0 0 50 0
Note: Percentages are indicative of the column proportion within each verdict decision. Abbreviations: EM, emergency medicine physician; EMTALA, Emergency Medical Treatment and Labor Act; ENT, ear, nose, and throat specialist; OMS, oral and maxillofacial surgeon; PCP, primary care physician. * Significant at .05 level. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
those that did most commonly recruited OMSs (21.7%), physicians of unspecified specialty (14.5%), plastic surgeons (13.0%), dentists of unspecified specialty (11.6%), ophthalmologists (10.1%), emergency
physicians (5.8%), otolaryngologists (2.9%), and infectious disease physicians (1.4%). The remaining cases (4.3%) involved expert physician witnesses of other specialties not aforementioned.
1042.e5
FACTORS INFLUENCING FACIAL TRAUMA MALPRACTICE
FIGURE 2. A, Percentage of total malpractice cases separated by geographic region within the United States. B, Normalized regional initial verdicts. Compared with national averages, cases in the South significantly favored the defendant (P = .027), whereas a statistically significant proportion of cases favoring the plaintiff occurred in the Midwest (P = .007). Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
Of the cases examined, initial diagnosed injury included mandible fracture (43.5%), panfacial trauma (36.2%), orbital fracture (8.7%), ocular trauma (4.3%), facial laceration (2.9%), nasal fracture (2.9%), and maxillary or Le Fort fracture (1.4%). Although 2.9% of cases were settled outside of court, of the remaining cases, 58.0% were brought in front of a judge and 37.7% were brought in front of a jury of the plaintiff’s peers; 1 case was decided through unknown means (1.4%). Of all complaints brought against the practitioner, only 1 case involved a lack of informed consent (1.4%); other complaints included delay or failure to diagnosis (34.8%), failure to provide postoperative instructions or follow-up (4.3%), wrongful death (4.3%), introduction of a foreign body during an operative procedure (2.9%), violation of EMTALA policies (2.9%), delayed treatment (1.4%), failure to
monitor patient (1.4%), and failure to obtain a consult (1.4%). Complaints for the remaining cases were inadequate care that deviated from treatment standards (46.4%), unknown (11.6%), out of scope (1.4%), or abandoned (1.4%). DECISIONS AND VERDICTS
Of the 69 cases examined, 75.4% were initially decided on behalf of the defendants (hereafter referred to as ‘‘dismissed’’), 18.8% were initially decided on behalf of the plaintiff (hereafter referred to as ‘‘upheld’’), 2.9% were settled, and 2.9% ended in unknown outcome. An initial case dismissal was statistically significant for the judge (92.5%; P < .001) and jury (57.7%; P = .011). When comparing initial and final verdicts, reversal of decision as a function of the initial
1042.e6
MOZEIKA ET AL
Table 2. INJURY CATEGORY BY PROVIDER SPECIALTY
Injury Category
Provider Specialty Plastic surgeon Emergency medicine physician Oral and maxillofacial surgeon Otolaryngologist Radiologist General surgeon Ophthalmologist Primary care physician Nurse Anesthesiologist Orthopedic surgeon Unknown Miscellaneous Total
Mandible Fracture
Panfacial Trauma
Orbital Fracture
Ocular Trauma
Nasal Fracture
Facial Laceration
Maxilla Fracture
Total
6 5 8* 2 2 2 0 1 1 1 0 1 1 30
4 1 0y 2 3 2 1 2 1 0 1 6 0 25
2 0 0 0 1 1 1 0 0 0 0 0 1 6
0 2 0 0 0 0 1 0 0 0 0 0 0 3
0 0 0 2z 0 0 0 0 0 0 0 0 0 2
0 1 0 0 0 0 1 0 0 0 0 0 0 2
0 0 0 1 0 0 0 0 0 0 0 0 0 1
12 10 8 7 6 5 4 3 2 1 1 7 2 69
Note: Provider specialty was not reliably correlated to injury category in facial trauma malpractice cases. All values are statistically insignificant, unless otherwise stated. * P = .001. y P = .044. z P = .009. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
verdict was not statistically significant; 13 of 52 dismissed cases were reversed (25.0%; P = .756) and 5 of 13 upheld cases were reversed (38.5%; P = .301). Reversal of the initial decision through subsequent litigation as decided by a judge (27.5%; P = .749) versus as decided by a jury (34.6%; P = .423) was not statistically significant (Fig 3). Decision as a function of geographic location was statistically significant, with the Midwest favoring upholding the complaint (40%; P = .007) and the South favoring dismissing the complaint (91.4%; P = .027; Fig 2). Decision as a function of injury type, defendant specialty, and reason for malpractice claim was not statistically relevant. MONETARY OUTCOMES
Of the 15 cases that resulted in payment to the plaintiff, 13 were upheld in court and 2 were settled from 1913 to 2016; 13 of these 15 decisions were made from 1966 to 2016. Of these cases, 12 cases reported totals ranging from $14,437.60 to $1,826,744.40 after normalizing for inflation. Of these cases, 2 were awarded through a trial by judge, with payments of $31,662.17 and $57,242.23. Of the 2 settled cases, 1 award was unknown and 1 award was $389,093.00 (Fig 4C). Monetary outcome as a function of geographic location, injury type, defendant specialty, and reason for malpractice claim was not statistically relevant.
DELAYED DIAGNOSIS AND RADIOGRAPHY
A complaint of delay or failure to diagnosis was significantly more likely to be brought against an emergency physician (P = .002). No complaints of delayed or failed diagnosis were brought against a plastic surgeon or otolaryngologist. Of the 24 cases involving delayed or failed diagnosis, 4 cases did not involve a fracture. For the remaining 20 cases, 14 unique patients were represented. Nine of these patients had initial radiographic imaging; 5 of these 9 had subsequent imaging, with more sensitive imaging techniques (computed tomography [CT] and magnetic resonance imaging) being used for only 3 cases (Fig 4).
Discussion The US medicolegal atmosphere is becoming an increasingly important consideration for current medical practitioners. Since 2013, studies have aimed at elucidating the specific factors that determine legal outcomes in these medical cases from a variety of specialty fields.1 Operating with the hypothesis that surgical sub-disciplines have very unique and specific variables that ultimately affect malpractice claims, the aim of this study was to describe the specific sociologic and medical factors that influence malpractice claim decisions in cases involving facial trauma.
1042.e7
FACTORS INFLUENCING FACIAL TRAUMA MALPRACTICE
FIGURE 3. A, Percentage of total malpractice cases separated by type of litigation. B, Initial verdict normalized within each type of litigation. Judges significantly decided in favor of the defendant (P < .001); juries significantly decided in favor of the defendant (P = .011). C, The average monetary awards from judges, settlements, and juries were approximately $44,000, $389,000, and $1.8 million (adjusted for inflation to 2016), respectively. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
1042.e8
MOZEIKA ET AL
FIGURE 4. Illustration of algorithm for ‘‘delay or failure to diagnose’’ cases with respect to radiographic procedures. CT, computed tomography; MRI, magnetic resonance imaging. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
PRESENT FINDINGS
The present study identified a lack of informed consent as the complaint in only 1 case and a stark but somewhat predictable lack of cosmesis complaints in malpractice suits. Ultimately, a plaintiff’s ability to establish cause of action for malpractice relies on meeting 4 main principles: 1) establishment of
professional duty between the physician and patient; 2) breach of duty, which also is referred to as a deviation from the standard of care; 3) injury as a direct or indirect result of the malpractice; and 4) resulting damages.20 In the present study, only 13 cases were upheld by judge or jury and thus met all 4 principles of medicolegal negligence. An overwhelming majority
1042.e9 of cases decided in the favor of the plaintiff were jury trials. This finding is understandable given the overall litigation structure of the US court system, where it is a constitutional right for persons to be initially tried by a jury of their peers and not by experts within the field.20 Monetary awards set after the decision were not dependent on type of injury suffered by the patient, except that, predictably, wrongful death resulted in the largest financial award. Geographic region was a relevant contributing variable to the final legal outcome of facial trauma malpractice cases. Although the South showed a propensity to favor health care providers, the Midwest often found sufficient grounds of malpractice. Type of injury, defendant specialty, and reason for malpractice claim were not relevant in determining legal outcomes in this study. Throughout facial trauma litigation, the authors noted that delay or failure to diagnosis was the most common singular reason for a malpractice lawsuit. Nearly two thirds of these cases detail that patients received an initial x-ray examination in their facial trauma management. Further, more than half these patients underwent subsequent imaging with CT or an additional modality, which then diagnosed at least 1 facial bone fracture. Therefore, it appears that more sensitive radiographic tests might limit legal risk. COMPARISON WITH RELATED STUDIES
In facial plastics, lack of informed consent and patient satisfaction with cosmetic outcome were overwhelmingly cited as the reason for malpractice.17,18 This trend deviates from the present study, in which lack of informed consent and lack of cosmesis were predictably lacking in lawsuits.21 A possible explanation for this is the sheer urgent nature of this traumabased field. Another possible reason is that although risks might be downplayed in cosmetic procedures by some providers, the need to ‘‘sell’’ a procedure is lacking in facial trauma. In addition, as discussed by Svider et al17 within the field of plastics, the most common expert witness testimonies came from plastic surgeons; the present analysis disclosed yet another discrepancy in that most facial trauma expert testimonies across all injury types came from OMSs, who, through the authors’ review, were defendants exclusively in mandibular fracture cases and not in panfacial trauma cases. A recent upward trend in the percentage of total expenses allocated to expert witnesses in malpractice cases suggests the possibility of a more nuanced medicolegal economic framework that makes it financially advantageous for some providers to serve as expert witnesses in trauma cases, explaining the discrepancy between expert witness and defendant specialty.22
FACTORS INFLUENCING FACIAL TRAUMA MALPRACTICE
The present study identified 2 geographic patterns for malpractice suits: the South showed a propensity to favor health care providers and the Midwest often found sufficient grounds of malpractice. The causative relation between geography and outcome requires further studies to characterize; however, based on the medicolegal climate in particular states,23 the authors hypothesize 4 possible scenarios that could account for this finding: 1) a tendency for juries composed of mid-westerners to side with the plaintiff, 2) an increased rate of legitimate malpractice cases occurring in the Midwest, 3) a preponderance for frivolous suits in the South, or 4) a proclivity for southern judges to dismiss claims. Regardless of reason, this association is relevant for medical professionals practicing in these regions. Specifically, it might behoove mid-western physicians to consider settlements over a trial, whereas southern health care professionals might be more comfortable allowing malpractice decisions to be decided through litigation. Of the delay or failure to diagnosis lawsuits, nearly two thirds of patients received an initial radiograph examination in their facial trauma management, and more than half these patients had subsequent imaging with CT or an additional radiograph, which then diagnosed at least 1 fracture. This finding, along with the current literature, supports the argument that more sensitive radiographic tests might limit legal risk, especially given that CT scan or a more informative panoramic radiograph is the preferred method for evaluating pan-injury facial trauma, ocular trauma, and nasal fractures.24 Because CT is recommended as the primary diagnostic imaging technique for facial trauma, malpractice claims concerning failure to diagnose with a standard radiograph might be easily substantiated and thus could affect emergency medicine physicians disproportionately. STRENGTHS AND WEAKNESSES
Given the considerable heterogeneity of influential factors in sub-disciplines, the existing generalized medicolegal research offers limited insight into the landscape of facial trauma malpractice. In consequence, further studies must investigate the medicolegal microenvironments of surgical subspecialties. The present study is the first to thoroughly explore the influencing aspects of facial trauma litigation. However, limitations must be acknowledged. First, litigation outcomes early in the legal process are not officially recorded, making their data inaccessible for analysis and underestimating the true frequency of facial trauma malpractice. However, given the legal record infrastructure and databases, it is an unavoidable limitation. Second, the analysis is restricted to the initial court decision, because Westlaw does not
MOZEIKA ET AL
consistently record final decisions. Regardless of the unknown impact on the real-world application of the present results, there is no feasible mechanism to use available public records, with or without matching to Westlaw cases. Third, as with any database study, there is the intrinsic limitation that data must be correctly and completely recorded. Fourth, despite the authors’ extensive search algorithm, the possibility remains that other applicable medical malpractice suits were not captured. Facial trauma is a common patient presentation that is managed by providers spanning a wide array of specialties, including facial plastic surgeons. This study describes the characteristics that affect the medicolegal outcomes of facial trauma-related malpractice cases obtained through the Westlaw database. Most of these cases cite a delay or failure to diagnose or a deviation from the standard of care as the reason for malpractice. Although informed consent and patient satisfaction with cosmesis are often major complaints in facial plastics, they have minimal impact in facial trauma cases. Legal outcomes in facial trauma are generally favorable for physicians, with nearly three fourths being dismissed. However, these outcomes display considerable variation, with the South favoring physicians and the Midwest favoring patients. Furthermore, emergency medicine attendings might decrease their risk of malpractice by using sensitive radiography while evaluating potential facial fractures. Further studies that continue to describe the medicolegal characteristics affecting litigation decisions must be considered. An immediate step after this investigation would be to examine specific reasons for the discrepancy in outcomes between the South and the Midwest. Enumerating the different factors involved in malpractice cases between different patient populations within the present sample presents another exciting avenue to better characterize the field of facial trauma. From a patient care and quality improvement perspective, further research and training could help mitigate the number and severity of poor outcomes that lead to malpractice suits.
References 1. Brown A, Patterson DA: To err is human. Presented at: Proceedings of the First Workshop on Evaluating and Architecting System Dependability (EASY’01); Berkeley, CA, 2001 2. Andel C, Davidow SL, Hollander M, Moreno DA: The economics of health care quality and medical errors. J Health Care Finance 39:39, 2012
1042.e10 3. Van Den Bos J, Rustagi K, Gray T, et al: The $17.1 billion problem: The annual cost of measurable medical errors. Health Affairs 30:596, 2011 4. Classen DC, Resar R, Griffin F, et al: ‘Global trigger tool’ shows that adverse events in hospitals may be ten times greater than previously measured. Health Affairs 30:581, 2011 5. American Association of Justice. Medical errors. Available at: https://www.justice.org/what-we-do/advocate-civil-justice-system/ issue-advocacy/medical-errors. Accessed September 8, 2017 6. Centers for Disease Control and Prevention. Medical errors decreased when work schedules for interns were limited, NIOSH- and AHRQ-funded studies find. Available at: https:// www.cdc.gov/niosh/updates/upd-10-28-04.html. Published 2004. Accessed September 8, 2017 7. US Food and Drug Administration. Strategies to reduce medication errors: Working to improve medication safety. Available at: https://www.fda.gov/drugs/resourcesforyou/consumers/ucm 143553.htm. Accessed September 8, 2017 8. Makary MA, Daniel M: Medical error-the third leading cause of death in the US. BMJ 353:i2139, 2016 9. Diederich Healthcare. 2017 Medical malpractice payout analysis. Available at: http://www.diederichhealthcare.com/thestandard/2017-medical-malpractice-payout-analysis/. Published 2017. Accessed September 8, 2017 10. US Department of Health and Human Services. NPDB research statistics. Available at: https://www.npdb.hrsa.gov/resources/ npdbstats/npdbStatistics.jsp#ContentTop. Accessed September 8, 2017 11. Jena AB, Seabury S, Lakdawalla D, Chandra A: Malpractice risk according to physician specialty. N Engl J Med 365:629, 2011 12. Wong WW, Ford RS, Ford AR, Gupta SC: Medical malpractice risk assessment in plastic surgery. Plast Reconstr Surg 130(5S-1):65, 2012 13. Lydiatt DD: Cancer of the oral cavity and medical malpractice. Laryngoscope 112:816, 2002 14. Lydiatt DD: Medical malpractice and cancer of the larynx. Laryngoscope 112:445, 2002 15. Lydiatt DD, Sewell RK: Medical malpractice and sinonasal disease. Otolaryngol Head Neck Surg 139:677, 2008 16. Shurtz I: The impact of medical errors on physician behavior: Evidence from malpractice litigation. J Health Econ 32:331, 2013 17. Svider PF, Keeley BR, Zumba O, et al: From the operating room to the courtroom. Laryngoscope 123:1849, 2013 18. Brown TW, McCarthy ML, Kelen GD, Levy F: An epidemiologic study of closed emergency department malpractice claims in a national database of physician malpractice insurers. Acad Emerg Med 17:553, 2010 19. Bureau of Labor Statistics. CPI inflation calculator. Available at: https://data.bls.gov/cgi-bin/cpicalc.pl. Accessed August 20, 2017 20. Bal BS: An introduction to medical malpractice in the United States. Clin Orthop Relat Res 467:339, 2009 21. Kandinov A, Mutchnick S, Nangia V, et al: Analysis of factors associated with rhytidectomy malpractice litigation cases. JAMA Facial Plast Surg 19:255, 2017 22. Carroll AE, Parikh PD, Buddenbaum JL: The impact of defense expenses in medical malpractice claims. J Law Med Ethics 40: 135, 2012 23. Guest L, Schap D, Tran T: The loss of chance rule as a special category of damages in medical malpractice: A state-by-state analysis. J Legal Econ 21:53, 2014 24. Charalambous C, Dunning J, Omorphos S, et al: A maximally sensitive clinical decision rule to reduce the need for radiography in mandibular trauma. Ann R Coll Surg Engl 87:259, 2005
Medical error in the United States carries substantial economic and safety costs, which manifest in a large number of malpractice suits filed each year. The aim of this study was to characterize the various sociologic and medical factors that influence malpractice suits occurring from cases of facial trauma.
Materials and Methods:
This retrospective cohort study examined defendant data from facial trauma malpractice cases extracted from the Westlaw database, a database composed of representative federal litigations. Study variables of interest included geographic region, type of trial, injury category, and provider specialty, which were analyzed for impact on initial and final legal decisions. Descriptive statistics, Pearson c2 test, and Fisher t test were performed using SPSS.
Results:
Of the 69 defendants (76.8% men and 23.2% women; age range, 17 to 57 yr), which resulted from 53 claims, 12 (17.4%) involved plastic surgeons and 10 (14.5%) involved emergency physicians. Most complaints consisted of inadequate care that deviated from treatment standards (32 [46.4%]) and delayed diagnosis (24 [34.8%]). Of delayed diagnosis cases, 14 patients had radiographic imaging performed. Geographic location of the claim was statistically significant—the Midwest upheld 40% of complaints (P = .007) and the South dismissed 91.4% (P = .027).
Conclusions: The impact of sociologic factors, including geographic region, informed consent, and cosmesis, and medical factors, such as delayed diagnosis and deviation from standard of care, in facial trauma litigation were found to be incongruent with previous studies describing the medicolegal influences in facial plastic procedures. This analysis provides greater insight to surgical practitioners across subspecialty disciplines regarding the potential legal implications of malpractice. Ó 2019 American Association of Oral and Maxillofacial Surgeons J Oral Maxillofac Surg 77:1042.e1-1042.e10, 2019
After publication of the Institute of Medicine’s study To Err Is Human, the past 2 decades have witnessed increased attention on the notion and consequences of medical error, underscored by billions of dollars spent annually on malpractice-associated costs.1-3 These errors carry danger to patients, upward of
400,000 deaths reported per year, and nonlethal harm reported at a 10- to 20-times higher rate.4,5 Organizations, such as the Centers for Disease and Prevention and the Food and Drug Administration, have responded by introducing new policies and guidelines for health care providers6,7; however,
Received from Department of Otolaryngology–Facial Plastic and
Address correspondence and reprint requests to Dr Paskhover:
Reconstructive Surgery, Rutgers New Jersey Medical School,
Department of Otolaryngology–Facial Plastics and Reconstructive
Newark, NJ.
Surgery, Rutgers New Jersey Medical School, 90 Bergen Street, Suite
*Medical Student. yMedical Student.
8100, Newark, NJ 07103; e-mail: [email protected] Received September 19 2018
zMedical Student.
Accepted January 3 2019
xMedical Student.
Ó 2019 American Association of Oral and Maxillofacial Surgeons
kAssistant Professor.
0278-2391/19/30007-2
Conflict of Interest Disclosures: None of the authors have any
https://doi.org/10.1016/j.joms.2019.01.005
relevant financial relationship(s) with a commercial interest.
1042.e1
1042.e2
MOZEIKA ET AL
medical errors, representing the third leading cause of death, continue to plague the current US health care landscape.8 The aftermath of medical error, mostly involving physician negligence, often plays out through malpractice suits.9,10 In 2016, nearly 43,000 cases totaling $3.8 billion in payouts were mainly awarded for allegations concerning diagnosis, treatment, and surgery,9 with the top 5 defendant specialties being surgical.11 Specifically, almost 15% of plastic surgeons face at least 1 malpractice suit each year compared with the 7% of total physicians facing a claim.11 The most common procedures identified in these claims involved the nose, skin, and breast, with an acrossthe-board focus on elective procedures.12 Previous studies have thoroughly examined litigation after medical error in plastic surgery and otolaryngology.13-16 Within facial plastics, malpractice claims have typically focused on the complaint of scarring or disfigurement, with more than 60% of cases ending in favor of the physician-defendant.17 Nevertheless, very sparse data exist on malpractice litigation within facial plastics, and even sparser data exist within the sub-discipline of facial trauma. Legal action after an emergency room visit has typically focused on diagnostic errors, with fractures being 1 of the top 3 missed diagnoses; more than two thirds of postemergency cases ended with neither payout nor trial, and of the 7% that went to trial, 85% of cases ended in favor of the physician-defendant.18 The purpose of the present study was to characterize medical malpractice within facial plastics, specifically in the sub-discipline of facial trauma. The authors hypothesized that factors influencing malpractice would be specific to subdisciplines and thus could not be generalized to entire fields. The aims were to analyze the impact of geographic region, patient and provider demographics, courtroom logistics, and medical factors on the outcomes of facial trauma malpractice cases.
Materials and Methods STUDY DESIGN
To address the research purpose, the authors designed and implemented a retrospective cohort review of medical malpractice cases. The sample population was composed of federal legal cases captured in a Westlaw legal database advanced search, with the term malpractice used in combination with the following exact-match terms: mandible fracture (n = 17), mandibular fracture (n = 6), maxilla fracture (n = 28), maxillary fracture (n = 1), orbital fracture (n = 8), orbital floor fracture (n = 2), nasal fracture (n = 16), nasal bone fracture (n = 1), frontal bone fracture (n = 1), fracture of the frontal bone (n = 3), tripod fracture (n = 1), zygomatic arch fracture
(n = 1), cheekbone fracture (n = 1), Le Fort (n = 53), facial trauma (n = 6), facial fracture (n = 33), nose fracture (n = 3), jaw fracture (n = 20), zygoma fracture (n = 1), facial laceration (n = 26), ethmoid fracture (n = 2), broken jaw (n = 68), orbits (n = 12), or broken nose (n = 33). Cases were included in the study if the presenting complaint was facial trauma and if a malpractice claim was filed in regard to the initial or subsequent management or complications of the facial trauma. Subject cases were excluded if the lawsuit was not related to the initial or subsequent management or complications of the facial trauma or if a substantial amount of incomplete information existed (Fig 1). VARIABLES
The primary predictor variables captured included state, type of injury, reason for malpractice claim, type of litigation, and medical specialty of the defendants and expert witnesses. The primary outcome variables captured included initial verdict, final verdict, and monetary awards and settlements. States were grouped into regions based on preset definitions provided by the US Census Bureau. Monetary awards and settlements were adjusted for inflation to December 2016 using a calculator available at the US Bureau of Labor Statistics’ website.19 Each injury was organized into 1 of 7 categories: ocular trauma, facial laceration, panfacial trauma, mandible fracture, maxilla or Le Fort fracture, nasal fracture, or orbital fracture. The category panfacial trauma encompasses cases that resulted from the search term facial trauma or appeared in multiple searches. Each reason for malpractice claim was organized into 1 of the following categories: delay or failure to diagnose, failure to provide postoperative instructions or lack of follow-up care, delay in initiation of treatment, failure to monitor patient’s condition, failure to obtain a consult, wrongful death, lack of informed consent, foreign body left postoperatively, practicing outside of scope, Emergency Medical Treatment and Labor Act (EMTALA) violation, abandonment of patient, inadequate care or deviation from treatment standards, or unknown. The classification ‘‘inadequate care or deviation from treatment standards’’ was created to categorize cases that had nonspecific claims related to diagnosis or treatment. The classification ‘‘unknown’’ was used for cases that were captured from the authors’ malpractice search algorithm but lacked any rationale for the claim. DATA ANALYSIS
Frequency statistics were generated in SPSS (IBM Corp, Armonk, NY) for geographic location, medical specialty of defendant, specialty of expert witnesses, injury type, reason for malpractice claim, type of
1042.e3
FACTORS INFLUENCING FACIAL TRAUMA MALPRACTICE
FIGURE 1. Illustration of the identification and isolation of malpractice claims from the various advance searches performed in the Westlaw database. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
litigation, and initial verdict. Pearson c2 test and Fisher exact test were used for comparison of various outcomes. Because this study did not involve interaction with human participants and used only publicly available data from the Westlaw database, institutional review board approval was not required in accordance with the policies of the institutional review board of the Rutgers New Jersey Medical School (Newark, NJ).
Results GENERAL CHARACTERISTICS
From the advanced search, 343 results were obtained. Sixty-nine facial trauma cases met the inclusion and exclusion criteria, of which 53 unique defendants were named. Dates of cases ranged from 1913 to 2016, with 67 of 69 decisions made from 1965 to 2013. Table 1 presents the final legal outcomes of facial malpractice cases included in this study as a function of provider specialty, case type, geographic location,
initial diagnosis, and reason for suit. Of the cases examined, 50.7% of decisions were processed through legal systems in the southern United States, 29.0% in the mid-western United States, 11.6% in the western United States, and 8.7% in the northeastern United States (Fig 2). The most common providers involved as defendants were plastic surgeons (17.4%), emergency medicine physicians (14.5%), oral and maxillofacial surgeons (OMSs; 11.6%), otolaryngologists (10.1%), radiologists (8.7%), general surgeons (7.2%), ophthalmologists (5.8%), primary care physicians (4.3%), nurses (2.9%), anesthesiologists (1.4%), orthopedic surgeons (1.4%), and hospital administrators (1.4%); of the remaining cases, the defendant was unknown (13.0%). OMSs were involved only in mandibular fracture cases (100%; P = .001) and were not engaged in any panfacial trauma cases (0%; P = .044). Of the aforementioned injuries, nasal fractures were treated exclusively (100%; P = .009) by otolaryngologists (Table 2). Although 46.4% of cases did not involve an expert physician witness,
1042.e4
MOZEIKA ET AL
Table 1. CASE OUTCOMES AS A FUNCTION OF ALL STUDY PRIMARY PREDICTOR VARIABLES
Specialty Hospitalist (n = 1) EM (n = 10) ENT (n = 7) Orthopedic surgeon (n = 1) Ophthalmologist (n = 4) PCP (n = 3) Plastic surgeon (n = 12) OMS (n = 8) Radiologist (n = 6) General surgeon (n = 5) Nurse (n = 2) Anesthesiologist (n = 1) Unknown (n = 7) Bench Judge (n = 40) Jury (n = 26) Unknown (n = 3) Geographic location Midwest (n = 20) Northeast (n = 6) South (n = 35) West (n = 8) Reason for suit Delayed diagnosis (n = 24) Postoperative issues (n = 3) Delayed treatment (n = 1) Failure to monitor (n = 1) Inadequate care (n = 32) Failure to obtain consult (n = 1) Wrong diagnosis (n = 3) Lack of informed consent (n = 1) Wound (n = 1) Foreign body (n = 2) Out of scope (n = 1) EMTALA violation (n = 2) Patient abandoned (n = 1) Unknown (n = 7) Type of injury Eye trauma (n = 3) Facial laceration (n = 2) Facial trauma (n = 25) Mandible fracture (n = 30) Maxilla fracture (n = 1) Nasal fracture (n = 1) Orbital fracture (n = 6)
Dismissed (n = 52)
Upheld (n = 13)
1.9 19.2 9.6 0 7.7 3.8 13.5 11.5 11.5 3.8 3.8 1.9 11.5
0 0 7.7 7.7 0 7.7 30.8 7.7 0 15.4 0 0 23.1
71.2* 28.8* 0
Settled (n = 2)
Unknown (n = 2)
0 0 0 0 0 0 50 50 0 0 0 0 0
0 0 50 0 0 0 0 0 0 50 0 0 0
23.1* 76.9* 0
0 0 100*
0 50 50
17.3* 7.7 61.5* 13.5
61.5* 7.7 23.1* 7.7
100 0 0 0
50 50 0 0
40.4 3.8 1.9 0 44.2 1.9 3.8 1.9 1.9 3.8 0 1.9 0 9.6
23.1 7.7 0 0 69.2 0 7.7 0 0 0 7.7 0 7.7 0
0 0 0 50 0 0 0 0 0 0 0 0 0 50
0 0 0 0 0 0 0 0 0 0 0 50 0 50
5.8 3.8 34.6 40.4 1.9 1.9 11.5
0 0 38.5 61.5 0 0 0
0 0 50 50 0 0 0
0 0 50 0 0 50 0
Note: Percentages are indicative of the column proportion within each verdict decision. Abbreviations: EM, emergency medicine physician; EMTALA, Emergency Medical Treatment and Labor Act; ENT, ear, nose, and throat specialist; OMS, oral and maxillofacial surgeon; PCP, primary care physician. * Significant at .05 level. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
those that did most commonly recruited OMSs (21.7%), physicians of unspecified specialty (14.5%), plastic surgeons (13.0%), dentists of unspecified specialty (11.6%), ophthalmologists (10.1%), emergency
physicians (5.8%), otolaryngologists (2.9%), and infectious disease physicians (1.4%). The remaining cases (4.3%) involved expert physician witnesses of other specialties not aforementioned.
1042.e5
FACTORS INFLUENCING FACIAL TRAUMA MALPRACTICE
FIGURE 2. A, Percentage of total malpractice cases separated by geographic region within the United States. B, Normalized regional initial verdicts. Compared with national averages, cases in the South significantly favored the defendant (P = .027), whereas a statistically significant proportion of cases favoring the plaintiff occurred in the Midwest (P = .007). Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
Of the cases examined, initial diagnosed injury included mandible fracture (43.5%), panfacial trauma (36.2%), orbital fracture (8.7%), ocular trauma (4.3%), facial laceration (2.9%), nasal fracture (2.9%), and maxillary or Le Fort fracture (1.4%). Although 2.9% of cases were settled outside of court, of the remaining cases, 58.0% were brought in front of a judge and 37.7% were brought in front of a jury of the plaintiff’s peers; 1 case was decided through unknown means (1.4%). Of all complaints brought against the practitioner, only 1 case involved a lack of informed consent (1.4%); other complaints included delay or failure to diagnosis (34.8%), failure to provide postoperative instructions or follow-up (4.3%), wrongful death (4.3%), introduction of a foreign body during an operative procedure (2.9%), violation of EMTALA policies (2.9%), delayed treatment (1.4%), failure to
monitor patient (1.4%), and failure to obtain a consult (1.4%). Complaints for the remaining cases were inadequate care that deviated from treatment standards (46.4%), unknown (11.6%), out of scope (1.4%), or abandoned (1.4%). DECISIONS AND VERDICTS
Of the 69 cases examined, 75.4% were initially decided on behalf of the defendants (hereafter referred to as ‘‘dismissed’’), 18.8% were initially decided on behalf of the plaintiff (hereafter referred to as ‘‘upheld’’), 2.9% were settled, and 2.9% ended in unknown outcome. An initial case dismissal was statistically significant for the judge (92.5%; P < .001) and jury (57.7%; P = .011). When comparing initial and final verdicts, reversal of decision as a function of the initial
1042.e6
MOZEIKA ET AL
Table 2. INJURY CATEGORY BY PROVIDER SPECIALTY
Injury Category
Provider Specialty Plastic surgeon Emergency medicine physician Oral and maxillofacial surgeon Otolaryngologist Radiologist General surgeon Ophthalmologist Primary care physician Nurse Anesthesiologist Orthopedic surgeon Unknown Miscellaneous Total
Mandible Fracture
Panfacial Trauma
Orbital Fracture
Ocular Trauma
Nasal Fracture
Facial Laceration
Maxilla Fracture
Total
6 5 8* 2 2 2 0 1 1 1 0 1 1 30
4 1 0y 2 3 2 1 2 1 0 1 6 0 25
2 0 0 0 1 1 1 0 0 0 0 0 1 6
0 2 0 0 0 0 1 0 0 0 0 0 0 3
0 0 0 2z 0 0 0 0 0 0 0 0 0 2
0 1 0 0 0 0 1 0 0 0 0 0 0 2
0 0 0 1 0 0 0 0 0 0 0 0 0 1
12 10 8 7 6 5 4 3 2 1 1 7 2 69
Note: Provider specialty was not reliably correlated to injury category in facial trauma malpractice cases. All values are statistically insignificant, unless otherwise stated. * P = .001. y P = .044. z P = .009. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
verdict was not statistically significant; 13 of 52 dismissed cases were reversed (25.0%; P = .756) and 5 of 13 upheld cases were reversed (38.5%; P = .301). Reversal of the initial decision through subsequent litigation as decided by a judge (27.5%; P = .749) versus as decided by a jury (34.6%; P = .423) was not statistically significant (Fig 3). Decision as a function of geographic location was statistically significant, with the Midwest favoring upholding the complaint (40%; P = .007) and the South favoring dismissing the complaint (91.4%; P = .027; Fig 2). Decision as a function of injury type, defendant specialty, and reason for malpractice claim was not statistically relevant. MONETARY OUTCOMES
Of the 15 cases that resulted in payment to the plaintiff, 13 were upheld in court and 2 were settled from 1913 to 2016; 13 of these 15 decisions were made from 1966 to 2016. Of these cases, 12 cases reported totals ranging from $14,437.60 to $1,826,744.40 after normalizing for inflation. Of these cases, 2 were awarded through a trial by judge, with payments of $31,662.17 and $57,242.23. Of the 2 settled cases, 1 award was unknown and 1 award was $389,093.00 (Fig 4C). Monetary outcome as a function of geographic location, injury type, defendant specialty, and reason for malpractice claim was not statistically relevant.
DELAYED DIAGNOSIS AND RADIOGRAPHY
A complaint of delay or failure to diagnosis was significantly more likely to be brought against an emergency physician (P = .002). No complaints of delayed or failed diagnosis were brought against a plastic surgeon or otolaryngologist. Of the 24 cases involving delayed or failed diagnosis, 4 cases did not involve a fracture. For the remaining 20 cases, 14 unique patients were represented. Nine of these patients had initial radiographic imaging; 5 of these 9 had subsequent imaging, with more sensitive imaging techniques (computed tomography [CT] and magnetic resonance imaging) being used for only 3 cases (Fig 4).
Discussion The US medicolegal atmosphere is becoming an increasingly important consideration for current medical practitioners. Since 2013, studies have aimed at elucidating the specific factors that determine legal outcomes in these medical cases from a variety of specialty fields.1 Operating with the hypothesis that surgical sub-disciplines have very unique and specific variables that ultimately affect malpractice claims, the aim of this study was to describe the specific sociologic and medical factors that influence malpractice claim decisions in cases involving facial trauma.
1042.e7
FACTORS INFLUENCING FACIAL TRAUMA MALPRACTICE
FIGURE 3. A, Percentage of total malpractice cases separated by type of litigation. B, Initial verdict normalized within each type of litigation. Judges significantly decided in favor of the defendant (P < .001); juries significantly decided in favor of the defendant (P = .011). C, The average monetary awards from judges, settlements, and juries were approximately $44,000, $389,000, and $1.8 million (adjusted for inflation to 2016), respectively. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
1042.e8
MOZEIKA ET AL
FIGURE 4. Illustration of algorithm for ‘‘delay or failure to diagnose’’ cases with respect to radiographic procedures. CT, computed tomography; MRI, magnetic resonance imaging. Mozeika et al. Factors Influencing Facial Trauma Malpractice. J Oral Maxillofac Surg 2019.
PRESENT FINDINGS
The present study identified a lack of informed consent as the complaint in only 1 case and a stark but somewhat predictable lack of cosmesis complaints in malpractice suits. Ultimately, a plaintiff’s ability to establish cause of action for malpractice relies on meeting 4 main principles: 1) establishment of
professional duty between the physician and patient; 2) breach of duty, which also is referred to as a deviation from the standard of care; 3) injury as a direct or indirect result of the malpractice; and 4) resulting damages.20 In the present study, only 13 cases were upheld by judge or jury and thus met all 4 principles of medicolegal negligence. An overwhelming majority
1042.e9 of cases decided in the favor of the plaintiff were jury trials. This finding is understandable given the overall litigation structure of the US court system, where it is a constitutional right for persons to be initially tried by a jury of their peers and not by experts within the field.20 Monetary awards set after the decision were not dependent on type of injury suffered by the patient, except that, predictably, wrongful death resulted in the largest financial award. Geographic region was a relevant contributing variable to the final legal outcome of facial trauma malpractice cases. Although the South showed a propensity to favor health care providers, the Midwest often found sufficient grounds of malpractice. Type of injury, defendant specialty, and reason for malpractice claim were not relevant in determining legal outcomes in this study. Throughout facial trauma litigation, the authors noted that delay or failure to diagnosis was the most common singular reason for a malpractice lawsuit. Nearly two thirds of these cases detail that patients received an initial x-ray examination in their facial trauma management. Further, more than half these patients underwent subsequent imaging with CT or an additional modality, which then diagnosed at least 1 facial bone fracture. Therefore, it appears that more sensitive radiographic tests might limit legal risk. COMPARISON WITH RELATED STUDIES
In facial plastics, lack of informed consent and patient satisfaction with cosmetic outcome were overwhelmingly cited as the reason for malpractice.17,18 This trend deviates from the present study, in which lack of informed consent and lack of cosmesis were predictably lacking in lawsuits.21 A possible explanation for this is the sheer urgent nature of this traumabased field. Another possible reason is that although risks might be downplayed in cosmetic procedures by some providers, the need to ‘‘sell’’ a procedure is lacking in facial trauma. In addition, as discussed by Svider et al17 within the field of plastics, the most common expert witness testimonies came from plastic surgeons; the present analysis disclosed yet another discrepancy in that most facial trauma expert testimonies across all injury types came from OMSs, who, through the authors’ review, were defendants exclusively in mandibular fracture cases and not in panfacial trauma cases. A recent upward trend in the percentage of total expenses allocated to expert witnesses in malpractice cases suggests the possibility of a more nuanced medicolegal economic framework that makes it financially advantageous for some providers to serve as expert witnesses in trauma cases, explaining the discrepancy between expert witness and defendant specialty.22
FACTORS INFLUENCING FACIAL TRAUMA MALPRACTICE
The present study identified 2 geographic patterns for malpractice suits: the South showed a propensity to favor health care providers and the Midwest often found sufficient grounds of malpractice. The causative relation between geography and outcome requires further studies to characterize; however, based on the medicolegal climate in particular states,23 the authors hypothesize 4 possible scenarios that could account for this finding: 1) a tendency for juries composed of mid-westerners to side with the plaintiff, 2) an increased rate of legitimate malpractice cases occurring in the Midwest, 3) a preponderance for frivolous suits in the South, or 4) a proclivity for southern judges to dismiss claims. Regardless of reason, this association is relevant for medical professionals practicing in these regions. Specifically, it might behoove mid-western physicians to consider settlements over a trial, whereas southern health care professionals might be more comfortable allowing malpractice decisions to be decided through litigation. Of the delay or failure to diagnosis lawsuits, nearly two thirds of patients received an initial radiograph examination in their facial trauma management, and more than half these patients had subsequent imaging with CT or an additional radiograph, which then diagnosed at least 1 fracture. This finding, along with the current literature, supports the argument that more sensitive radiographic tests might limit legal risk, especially given that CT scan or a more informative panoramic radiograph is the preferred method for evaluating pan-injury facial trauma, ocular trauma, and nasal fractures.24 Because CT is recommended as the primary diagnostic imaging technique for facial trauma, malpractice claims concerning failure to diagnose with a standard radiograph might be easily substantiated and thus could affect emergency medicine physicians disproportionately. STRENGTHS AND WEAKNESSES
Given the considerable heterogeneity of influential factors in sub-disciplines, the existing generalized medicolegal research offers limited insight into the landscape of facial trauma malpractice. In consequence, further studies must investigate the medicolegal microenvironments of surgical subspecialties. The present study is the first to thoroughly explore the influencing aspects of facial trauma litigation. However, limitations must be acknowledged. First, litigation outcomes early in the legal process are not officially recorded, making their data inaccessible for analysis and underestimating the true frequency of facial trauma malpractice. However, given the legal record infrastructure and databases, it is an unavoidable limitation. Second, the analysis is restricted to the initial court decision, because Westlaw does not
MOZEIKA ET AL
consistently record final decisions. Regardless of the unknown impact on the real-world application of the present results, there is no feasible mechanism to use available public records, with or without matching to Westlaw cases. Third, as with any database study, there is the intrinsic limitation that data must be correctly and completely recorded. Fourth, despite the authors’ extensive search algorithm, the possibility remains that other applicable medical malpractice suits were not captured. Facial trauma is a common patient presentation that is managed by providers spanning a wide array of specialties, including facial plastic surgeons. This study describes the characteristics that affect the medicolegal outcomes of facial trauma-related malpractice cases obtained through the Westlaw database. Most of these cases cite a delay or failure to diagnose or a deviation from the standard of care as the reason for malpractice. Although informed consent and patient satisfaction with cosmesis are often major complaints in facial plastics, they have minimal impact in facial trauma cases. Legal outcomes in facial trauma are generally favorable for physicians, with nearly three fourths being dismissed. However, these outcomes display considerable variation, with the South favoring physicians and the Midwest favoring patients. Furthermore, emergency medicine attendings might decrease their risk of malpractice by using sensitive radiography while evaluating potential facial fractures. Further studies that continue to describe the medicolegal characteristics affecting litigation decisions must be considered. An immediate step after this investigation would be to examine specific reasons for the discrepancy in outcomes between the South and the Midwest. Enumerating the different factors involved in malpractice cases between different patient populations within the present sample presents another exciting avenue to better characterize the field of facial trauma. From a patient care and quality improvement perspective, further research and training could help mitigate the number and severity of poor outcomes that lead to malpractice suits.
References 1. Brown A, Patterson DA: To err is human. Presented at: Proceedings of the First Workshop on Evaluating and Architecting System Dependability (EASY’01); Berkeley, CA, 2001 2. Andel C, Davidow SL, Hollander M, Moreno DA: The economics of health care quality and medical errors. J Health Care Finance 39:39, 2012
1042.e10 3. Van Den Bos J, Rustagi K, Gray T, et al: The $17.1 billion problem: The annual cost of measurable medical errors. Health Affairs 30:596, 2011 4. Classen DC, Resar R, Griffin F, et al: ‘Global trigger tool’ shows that adverse events in hospitals may be ten times greater than previously measured. Health Affairs 30:581, 2011 5. American Association of Justice. Medical errors. Available at: https://www.justice.org/what-we-do/advocate-civil-justice-system/ issue-advocacy/medical-errors. Accessed September 8, 2017 6. Centers for Disease Control and Prevention. Medical errors decreased when work schedules for interns were limited, NIOSH- and AHRQ-funded studies find. Available at: https:// www.cdc.gov/niosh/updates/upd-10-28-04.html. Published 2004. Accessed September 8, 2017 7. US Food and Drug Administration. Strategies to reduce medication errors: Working to improve medication safety. Available at: https://www.fda.gov/drugs/resourcesforyou/consumers/ucm 143553.htm. Accessed September 8, 2017 8. Makary MA, Daniel M: Medical error-the third leading cause of death in the US. BMJ 353:i2139, 2016 9. Diederich Healthcare. 2017 Medical malpractice payout analysis. Available at: http://www.diederichhealthcare.com/thestandard/2017-medical-malpractice-payout-analysis/. Published 2017. Accessed September 8, 2017 10. US Department of Health and Human Services. NPDB research statistics. Available at: https://www.npdb.hrsa.gov/resources/ npdbstats/npdbStatistics.jsp#ContentTop. Accessed September 8, 2017 11. Jena AB, Seabury S, Lakdawalla D, Chandra A: Malpractice risk according to physician specialty. N Engl J Med 365:629, 2011 12. Wong WW, Ford RS, Ford AR, Gupta SC: Medical malpractice risk assessment in plastic surgery. Plast Reconstr Surg 130(5S-1):65, 2012 13. Lydiatt DD: Cancer of the oral cavity and medical malpractice. Laryngoscope 112:816, 2002 14. Lydiatt DD: Medical malpractice and cancer of the larynx. Laryngoscope 112:445, 2002 15. Lydiatt DD, Sewell RK: Medical malpractice and sinonasal disease. Otolaryngol Head Neck Surg 139:677, 2008 16. Shurtz I: The impact of medical errors on physician behavior: Evidence from malpractice litigation. J Health Econ 32:331, 2013 17. Svider PF, Keeley BR, Zumba O, et al: From the operating room to the courtroom. Laryngoscope 123:1849, 2013 18. Brown TW, McCarthy ML, Kelen GD, Levy F: An epidemiologic study of closed emergency department malpractice claims in a national database of physician malpractice insurers. Acad Emerg Med 17:553, 2010 19. Bureau of Labor Statistics. CPI inflation calculator. Available at: https://data.bls.gov/cgi-bin/cpicalc.pl. Accessed August 20, 2017 20. Bal BS: An introduction to medical malpractice in the United States. Clin Orthop Relat Res 467:339, 2009 21. Kandinov A, Mutchnick S, Nangia V, et al: Analysis of factors associated with rhytidectomy malpractice litigation cases. JAMA Facial Plast Surg 19:255, 2017 22. Carroll AE, Parikh PD, Buddenbaum JL: The impact of defense expenses in medical malpractice claims. J Law Med Ethics 40: 135, 2012 23. Guest L, Schap D, Tran T: The loss of chance rule as a special category of damages in medical malpractice: A state-by-state analysis. J Legal Econ 21:53, 2014 24. Charalambous C, Dunning J, Omorphos S, et al: A maximally sensitive clinical decision rule to reduce the need for radiography in mandibular trauma. Ann R Coll Surg Engl 87:259, 2005