Medical malpractice in gastroenterology

The evolution of informed consent in gastroenterology

With medical litigation on the rise, physicians require a nuanced understanding of the legalities of consenting patients to reduce their liability while practising evidence-based medicine. This study aims to a) clarify the legal duties of gastroenterologists in the UK and USA when gaining informed consent and b) provide recommendations at the international and physician level to improve the consent process and reduce liability.A bibliometric analysis of the Web of Science database with the MeSH terms "gastroenterology" and "informed consent" yielded 383 articles, of which 228 were excluded due to not meeting the inclusion criteria. Of the top 50 articles, 48% were from American institutions and 16% were from the UK. Thematic analysis showed 72% of the articles discussed informed consent in relation to diagnostic procedures, 14% regarding treatment, and 14% regarding research participation.Both the USA and the UK have progressed from previously paternalistic Natanson case (1960) and Bolam test (1957), respectively, where physicians were held to the standard of a "reasonable and prudent medical doctor". The American Canterbury case (1972) and the British Montgomery case (2015) radically shifted the standard of disclosure during the consent process by requiring physicians to explain all information pertinent to a "reasonable patient".It is our recommendation that a two-pronged approach be taken; a) creation of international guidelines for consenting patients for invasive procedures in gastroenterology, and b) development of internationally standardised endoscopy consent forms containing all the details pertinent to a "reasonable patient".

Medical malpractice claims in Hepatology: Rates, Reasons, and Results

BACKGROUND

Clinicians are motivated to provide safe, high-quality care to patients with chronic liver disease. This includes the desire to avoid litigation. Data are limited regarding the actual sources of medicolegal risk in chronic liver disease.

METHODS

We conducted a review of a national liability insurer (Candello) with an additional granular analysis of our institution's registry of liability claims. We included closed cases involving chronic liver disease-related encounters between 2012 and 2021. We determined rates of legal claims from a denominator of unique patients with cirrhosis or transplant care seen over the study period.

RESULTS

Local database: We retrieved 39 claims of which 15 involved patients with non-cirrhotic chronic liver disease, 13 involved cirrhosis (0.06% incidence), and 11 involved patients who underwent transplantation (0.6% incidence). Most claims involved periprocedural complications. Others included adverse reactions to prophylactic plasma transfusion, medication-induced HE, and falls/fractures.

NATIONAL DATABASE

We found 94 claims related to liver disease out of 102,575 (0.09%) total claims. Overall, 56% involved diagnosis-related issues (failure/delay in ordering a diagnostic test, failure to appreciate and reconcile a symptom/sign or result, or the misinterpretation of a diagnostic study). Miscommunication between providers and between providers and patients was implicated in 22% of cases. Patient behavior-related factors (nonadherence with scheduled appointments, treatments, or diagnostic testing) factored in 20% of cases. Selection or the management of therapy played a role in 7% of cases. Very rarely were cases associated with technical skill (4%), house staff supervision (3%), or weekend/holiday care (1%). Fifty-one (55%) claims involved HCC.

CONCLUSION

We provide the rates and reasons for medical malpractice claims in hepatology.

Denials, Dilly-dallying, and Despair: Navigating the Insurance Labyrinth to Obtain Medically Necessary Medications for Pediatric Inflammatory Bowel Disease Patients

Increasingly, in the United States, the prescribing of high-cost drugs has become a challenge for physicians and other practitioners. Such drugs are highly regulated by third-party payers (aka insurance), as well as pharmacy benefit managers. Not infrequently, a clinician prescribing a medication will have the payment for the prescription denied by the third-party payer, with the end result being a delay in getting a medically necessary medication to a patient. This article highlights the challenges involved in the prior authorization and denial process, with a focus on pediatric inflammatory bowel disease. The article reviews the role of pharmacy benefits managers in restricting access to drugs, and the reasons why denials of medically necessary medications may occur. The article also provides information on how to appeal denials, how to write a letters of medical necessity, and how to conduct a proper peer-to-peer review. Advocacy from patients and clinicians will be important, as we want to reform the process in the future.

Medical malpractice and gastrointestinal endoscopy

PURPOSE OF REVIEW

Medical liability is a perennial issue that most physicians will face at some point in their careers. Gastroenterologists routinely perform endoscopic procedures to aid in the diagnosis and treatment of their patients. Advances in endoscopic techniques and technology have accelerated movement of the field into a more surgical realm. These developments warrant consideration of pitfalls that may expose gastroenterologists to liability. This review will explore trends in malpractice facing gastroenterologists and offer strategies to deliver high quality and safe patient care.

RECENT FINDINGS

Despite being a procedure-oriented subspeciality, only a minority of malpractice claims against gastroenterologists are related to procedures. Diagnostic error is among the most prevalent reason for lawsuits. The consequences of malpractice are costly due litigation and indemnity as well as the increase in defensive medical practice. Improving diagnostic quality, optimizing informed consent, and enhancing patient-physician communication are important elements of risk mitigation.

SUMMARY

Understanding the important role that diagnosis plays in medical liability allows physicians to better evaluate risk and apply deliberate decision-making in order to practice confidently.

Medical Liability of the Vaccinating Doctor: Comparing Policies in European Union Countries during the COVID-19 Pandemic

In 2020, the COVID-19 pandemic exhausted healthcare systems around the world, including European Union countries, with healthcare workers at the frontline. Therefore, new health laws and policies have been introduced at the national level in order to offer greater legal protection for health workers. Since the introduction of COVID-19 vaccination, it has led to the development of specific laws to define the compulsoriness for particular categories. This review aimed to evaluate the system of medical liability, focusing on the ten countries of the European Union with the highest rate of vaccination coverage against SARS-CoV-2. A country-by-country analysis was conducted on the different medical liability systems of individual professionals, in general, and with specific focus on the vaccinating doctors. Additional search was conducted to investigate which European states have introduced specific policies in this field, to identify the implementation of any new laws alongside the COVID-19 vaccination campaigns, and to assess which countries have adopted the European Digital COVID Certificate and funded specific compensation programs for COVID-19 vaccination. Our results highlight an extremely fragmented European scenario; therefore, this work could be a starting point to define a common approach for medical liability and related policies in the COVID-19 pandemic.

Current Trends and Predictors of Case Outcomes for Malpractice in Colonoscopy in the United States

BACKGROUND

Over 14 million colonoscopies are performed annually, and this procedure remains the largest contributor to malpractice claims against gastroenterologists. The aim of this study was to evaluate reasons for litigation and predictors of case outcomes.

MATERIALS AND METHODS

Cases related to colonoscopy were reviewed within the Westlaw legal database. Patient demographics, reasons for litigation, case payouts, and verdicts were assessed. Multivariate regression was used to determine predictors of defendant verdicts.

RESULTS

A total of 305 cases were included from years 1980 to 2017. Average patient age was 54.9 years (range, 4 to 93) and 52.8% of patients were female. Juries returned defendant and plaintiff verdicts in 51.8% and 25.2% of cases, respectively, and median payout was $995,000. Top reasons for litigation included delay in treatment (65.9%) and diagnosis (65.6%), procedural error (44.3%), and failure to refer (25.6%). Gastroenterologists were defendants in 71% of cases, followed by primary care (32.2%) and surgeons (14.8%). Cases citing informed consent predicted defendant verdict (odds ratio, 4.05; 95% confidence interval, 1.90-9.45) while medication error predicted plaintiff verdict (odds ratio, 0.18; 95% confidence interval, 0.04-0.59). Delay in diagnosis (P=0.060) and failure to refer (P=0.074) trended toward plaintiff verdict but did not reach significance. Most represented states were New York (21.0%), California (13.4%), Pennsylvania (13.1%), Massachusetts (12.5%).

CONCLUSIONS

Malpractice related to colonoscopy remains a significant and has geographic variability. Errors related to sedation predicted plaintiff verdict and may represent a target to reduce litigation. Primary care physicians and surgeons were frequently cited codefendants, underscoring the significance of interdisciplinary care for colonoscopy.

A Retrospective Analysis of Malpractice-Related Procedure Rates for Internal Medicine Specialists at an Academic Medical Center

BACKGROUND

Although malpractice litigation is common in the United States, the risk of a malpractice claim for procedures performed by internal medical practitioners is unknown. This study determined the frequency of malpractice claims related to procedures in a large department of medicine at an academic medical center over a five-year period.

METHODS

Researchers retrospectively reviewed all malpractice claims and procedures performed by internal medicine practitioners of all specialties between July 1, 2014, and June 30, 2019, in a department of medicine at a large academic medical center. A list of all procedures and Current Procedural Terminology codes performed by internal medicine practitioners was compiled. Active procedure-related malpractice claims and the total number of procedures performed during the study period were counted.

RESULTS

During the study period, 353,661 procedures were performed by internal medicine practitioners. During the same period, 76 active malpractice claims were identified, of which only 13 (17.1%) were procedure-related. For 2 different malpractice claims, a single patient had 2 procedures; thus 13 total claims related to the performance of 15 procedures. The proportion of procedure-related claims per total number of procedures performed was 0.37 claims/10,000 cases. The frequency of procedure-related malpractice claims per number of procedures performed ranged from 1 in 38 for pulmonary artery thrombolytic therapy to 1 in 137,325 for colonoscopy.

CONCLUSION

Procedure-related malpractice claims against internal medicine practitioners at a large academic medical center over a five-year period were infrequent despite significant procedural volume. Contextualizing procedure-related malpractice claims in terms of procedure-specific volume reframes the reporting of malpractice risk.

Mors Gaudet Succurrere Vitae. The Role of Clinical Autopsy in Preventing Litigation Related to the Management of Liver and Digestive Disorders

Over the last 50 years, the number of clinical autopsies has decreased, but their role in assessing cause of death and clinical performance is still acknowledged. Few publications have studied their role in malpractice claim prevention. The paper aims to highlight the role of clinical autopsy in preventing errors and improve healthcare quality. A retrospective study was conducted on 28 clinical autopsies performed between 2015 and 2021 on patients dead unexpectedly after procedures for the diagnosis and treatment of digestive and hepatic diseases. After an accurate analysis of medical records and consultation with healthcare professionals, all cases were subjected to autopsy and histopathology. The data obtained were analyzed and shared with the risk-management team to identify pitfalls and preventive strategies. Post-mortem evaluations confirmed the clinical diagnosis only in six cases (21.4%). Discordances were observed in 10 cases (35.7%). In the remaining 12 cases (42.9%) the clinical diagnosis was labeled as "unknown" and post-mortem examinations made it possible to document the cause of death. Post-mortem examinations can concretely enrich hospital prevention systems and improve patient safety. The methodological approach outlined certainly demonstrates that, even in the risk-management field, "mors gaudet succurrere vitae" ("death delights in helping life").

Medical professional liability in gastroenterology: definitions, trends, risk factors, provider behaviors, and implications

Introduction: Medical professional liability (MPL) is a notable concern for many clinicians, especially in procedure-intensive specialties such as gastroenterology (GI). Comprehensive understanding of the basis for MPL claims can improve gastroenterologists' practice, lower MPL risk, and improve the overall patient care experience. This is particularly relevant in the setting of the increasing average compensation per paid GI-related MPL claim, and evolving healthcare delivery patterns and regulations.Areas Covered: MPL claims are generally grounded in the concept of negligence, a broad term that may apply to situations involving medical errors, ameliorable adverse events, inadequate informed consent and/or refusal, and numerous others. Though often not directly discussed in GI training or thereafter, there are various mechanisms and behaviors that can alter (decrease or increase) MPL risk. Additional dimensions of MPL include telemedicine, social media, and vicarious liability. We discuss these topics as well as takeaways to mitigate risk, thus reducing unnecessary clinician anxiety, promoting professional development, and optimizing healthcare outcomes.Expert Opinion: MPL risk is modifiable. Strong provider-patient relationships, through effective communication, patient reassurance, and enhanced informed consent, decrease risk, as does thorough documentation. Conversely, provider 'defensive' mechanisms intended to decrease MPL risk, including assurance and avoidance behaviors, may paradoxically increase it.

Medico-legal implications for the colon perforation during colonoscopy

Colon perforation is the most serious complication of colonoscopy, and tends to be considered as malpractice. The aim of this study was to identify the characteristics and causes of medical accidents by analyzing lawsuit cases on colon perforation during colonoscopy. We collected judgment results that were ruled from 2005 to 2015 using the keyword 'colonoscopy' in the 'Korea's Written Judgment Public Reading System' of the Supreme Court, and extracted the cases of colon perforation. Characteristics of medical accidents and the decisions of courts were analyzed from written judgments. Twenty-two lawsuits were analyzed. Most cases were ruled in favor of the plaintiff (n = 20). The allegations against defendants, as filed by the plaintiffs, were performance error (n = 22), improper monitoring after colonoscopy (n = 7), and a lack of informed consent (n = 8). The median compensation was 9335.47 US dollars; this is about 130 times the cost of a single colonoscopy in Korea. The greater the intestinal damage, the greater the amount of compensation (p = 0.016). The time interval from procedure to diagnosis of perforation was most frequently 24 h later (n = 9). It is important to educate patients completely about the symptoms of colon perforation and to guide them to contact medical institutions immediately when symptoms occur. In addition, doctors should explain sufficiently the possibility of perforation before colonoscopy to the patient, and not the caregiver, and get informed consent.

Do Nontechnical Skills Affect Legal Outcomes After Endoscopic Perforations?

INTRODUCTION

Health systems often emphasize technical skills to reduce iatrogenic injuries. Nontechnical skills such as clinical and communication skills are mostly overlooked or not readily retrievable from medical records. Our aim was to estimate the association of technical and nontechnical skills of endoscopists with indemnity payments to patients after endoscopic perforations.

METHODS

This is an observational registry-based study of closed claims against gastroenterologists involved in endoscopic perforations.

RESULTS

We analyzed 175 closed claims related to perforations, all of which involved allegations of improper performance of the endoscopic procedure. Inadequate communication (n = 71, 41%) and clinical judgment (n = 60, 34%) on the part of the endoscopists were observed. Inadequate communication and clinical judgment were associated with over 3-fold odds of indemnity payment (odds ratio [OR] 3.31; 95% confidence interval [CI], 1.46-7.48, and OR 3.18; 95% CI, 1.44-7.01, respectively). However, if there were no communication breakdown or clinical judgment issues and the only allegation was poor technical skill, the odds of indemnity payments were less than half of those cases (OR 0.43; 95% CI 0.15-0.80). There was no evidence of a statistically significant interaction among age, procedure type, trainee involvement, clinical severity, need for surgery, and procedure-related death.

DISCUSSION

We observed that inadequate communication and clinical judgment were associated with indemnity payment, independent of the severity of clinical outcomes. On the other hand, cases wherein there was an allegation of poor technical skills alone, without communication breakdown or clinical judgment issues, were associated with favorable legal outcomes for the defendant. (See the Visual Abstract at http://links.lww.com/AJG/B568.).

Quality indicators for endoscopic retrograde cholangiopancreatography. The procedure of endoscopic retrograde cholangiopancreatography

The goal of the project encompassing the present paper is to propose useful quality procedures and indicators in order to improve quality in digestive endoscopy units. In this third part outcome procedures and indicators are suggested for endoscopic retrograde cholangiopancreatography (ERCP). First, a diagram of pre- and post-ERCP steps was developed. A group of experts in healthcare quality and/or endoscopy, under the shelter of the Spanish Society of Digestive Diseases (Sociedad Española de Patología Digestiva - SEPD), carried out a qualitative review of the literature regarding quality indicators for ERCP. Then, a paired analysis was used for the selection of identified references. A total of six specific indicators, apart from the common indicators already described, were identified, all of them process indicators (two pre-procedure and four post-procedure). Evidence quality was analyzed for each indicator using the Grading of Recommendations Assessment, Development, and Evaluation (GRADE) classification.

Mapping international practice patterns in EUS-guided tissue sampling: outcome of a global survey

BACKGROUND AND STUDY AIMS

Although Endoscopic Ultrasound (EUS)-guided tissue sampling is widely used, the optimal sampling strategy remains subject of debate. We evaluated practice patterns within the international endosonographic community.

PATIENTS AND METHODS

An online questionnaire was sent to 400 endosonographers from the United States, Europe, and Asia.

RESULTS

A total of 186 (47 %) endosonographers participated: United States 54 (29 %), Europe 85 (46 %), and Asia 47 (25 %). European (75 %) and Asian (84 %) respondents routinely check coagulation status, whereas US respondents only check on indication (64 %, P = 0.007). While propofol sedation is standard in the United States (83 %), conscious sedation is still widely used in Europe (52 %) and Asia (84 %, P < 0.001). Overall, the 22-gauge needle is most commonly used (52 %). For fine-needle aspiration (FNA) of solid pancreatic lesions, 22-gauge (45 %) and 25-gauge (49 %) needles are used equally. For fine-needle biopsy (FNB) of solid masses, the 25-gauge device is less favored than the 22-gauge FNA device (49 % versus 21 %). The 19-gauge needle is generally used for FNB of submucosal masses (62 %). Rapid on-site pathological evaluation (ROSE) is utilized more often by US (98 %) than by European and Asian respondents (51 %, P < 0.001). Cytolyt (52 %), formalin (15 %) and alcohol (15 %) are used for FNA specimen preservation in the United States and Europe, while saline (27 %) and alcohol (38 %) are widely used in Asia (P < 0.001).

CONCLUSIONS

EUS-guided tissue sampling practices vary substantially within the international endosonographic community and differ considerably from recommendations expressed in guidelines. Because the clinical relevance of these variations is largely unknown, the outcome of this survey suggests a need for further studies.

No-fault compensation for treatment injuries in Danish public hospitals 2006-12

OBJECTIVE

We aimed to determine the incidence rate and time trend of approved treatment injuries in Danish public hospitals from 2006 to 2012 and also to identify independent predictors of severe treatment injuries among patient and system factors and characterize the injuries.

DESIGN AND SETTING

We performed a nationwide, historical observational study on data from the Danish Patient Compensation Association, which receives all compensation claims from Danish health care. All approved closed claims of treatment injuries occurring in public hospitals 2006-12 were included. Health care activity information was obtained through Statistics Denmark.

MAIN OUTCOME MEASURES

Incidence rates were determined as treatment injuries per year by population and by public hospital contacts. By using a multivariable logistic regression model, we calculated mutually adjusted odds ratios to assess the association between potential predictors and severe injuries among approved claims.

RESULTS

We identified 10,959 approved treatment injury claims in 2006-12. The total payout was USD 339 million. The mean incidence rate medians were 27.9 injuries/100,000 inhabitants/year and 0.21 injuries/1000 public hospital contacts/year. These did not increase overtime. Severe injuries and preventable cases comprised 11.0 and 41.0%, respectively. Predictors of severe injury included age 0 and above 40 years, male gender and higher level of comorbidity.

CONCLUSION

The incidence rate of approved closed claims at Danish public hospitals appears stable. A high proportion of injuries are preventable and both patient- and system-related factors may predict severe injuries.

Improving ERCP quality and decreasing risk to patients and providers

Endoscopic retrograde cholangiopancreatography (ERCP) continues to be one of the most complex gastrointestinal procedures and carries the highest risk of complications. Optimizing the outcome of ERCP requires a fine balance between the risk and the benefit of every maneuver performed. This fine balance has to include an analysis of the indication for the procedure, the optimal timing, the setting where the procedure is performed, the endoscopist and staff training and expertise, availability of surgical and interventional radiology support, the risk of every maneuver and ways to minimize this risk. As in any other procedure, it is very important to know one's limitations and have a plan for failed procedures including consulting a colleague or referring the patient to a center with more expertise. In addition, a process of quality improvement is integral to every endoscopy center to address areas of underperformance, improve patient care and decrease liability.

Malpractice claims for endoscopy

AIM: To summarize the magnitude and time trends of endoscopy-related claims and to compare total malpractice indemnity according to specialty and procedure.

METHODS: We obtained data from a comprehensive database of closed claims from a trade association of professional liability insurance carriers, representing over 60% of practicing United States physicians. Total payments by procedure and year were calculated, and were adjusted for inflation (using the Consumer Price Index) to 2008 dollars. Time series analysis was performed to assess changes in the total value of claims for each type of procedure over time.

RESULTS: There were 1901 endoscopy-related closed claims against all providers from 1985 to 2008. The specialties include: internal medicine (n = 766), gastroenterology (n = 562), general surgery (n = 231), general and family practice (n = 101), colorectal surgery (n = 87), other specialties (n = 132), and unknown (n = 22). Colonoscopy represented the highest frequencies of closed claims (n = 788) and the highest total indemnities ($54 093 000). In terms of mean claims payment, endoscopic retrograde cholangiopancreatography (ERCP) ranked the highest ($374  794) per claim. Internists had the highest number of total claims (n = 766) and total claim payment ($70  730  101). Only total claim payments for colonoscopy and ERCP seem to have increased over time. Indeed, there was an average increase of 15.5% per year for colonoscopy and 21.9% per year for ERCP after adjusting for inflation.

CONCLUSION: There appear to be differences in malpractice coverage costs among specialties and the type of endoscopic procedure. There is also evidence for secular trend in total claim payments, with colonoscopy and ERCP costs rising yearly even after adjusting for inflation.

Most doctors win: what to do if sued for medical malpractice

All gastroenterologists are at risk of being accused of medical malpractice; few have received much training about what to do should a lawsuit occur. This article details what one can expect in a typical medical malpractice negligence claim and reviews basic relevant legal terminology. The timeline of a lawsuit is described, particularly noting the physician's role in discovery and trial. Cautions and suggestions for successful navigation of this unfamiliar and uncomfortable world are dispensed.