Descriptive Analysis of Federal and State Interventional Pain Malpractice Litigation in the United States: A Pilot Investigation

BACKGROUND

The aim of this study was to examine and appreciate characteristics of malpractice lawsuits brought against interventional pain specialists.

OBJECTIVES

To examine and appreciate characteristics of malpractice lawsuits brought against interventional pain specialists.

STUDY DESIGN

Retrospective review.

SETTING

Jury verdicts and settlement reports of state and federal malpractice cases involving interventional pain practitioners from January 1, 1988, to January 1, 2018 were gathered from the Westlaw online legal database.

METHODS

Jury verdicts and settlement reports of state and federal malpractice cases involving interventional pain practitioners from January 1, 1988, to January 1, 2018 were gathered from the Westlaw online legal database. Data collected for each case included year, state, patient age, patient gender, defendant specialty, legal outcome, award amount, alleged cause of malpractice, and factors in plaintiff's decision to file. After elimination of duplicates and applying inclusion/exclusion criteria to our initial search yielding over 1,500 cases, a total of 82 cases were included in this study.

RESULTS

A total of 57.3% of cases resulted in a jury verdict in favor of the defendant, whereas 41.5% favored the plaintiff. When comparing cases that were performed in the operating room to cases performed outside the operating room, we found the jury verdicts to favor the plaintiff 83.3% of the time for operating room procedures (P = 0.003). In other words, interventional pain practitioners were more likely to be found at fault for complications from procedures performed in the operating room. To eliminate confounders, a logistical regression was performed and confirmed operating room procedures were an independent predictor of a verdict awarded to the plaintiff (P = 0.008). The median amount awarded to the plaintiff for all cases was $333,000, and the single highest award amount was $36,636,288. The median payout for operating room procedures was $450,000 (P = 0.010), which was significantly different from the median payout for nonoperating room procedures. Procedure categorization demonstrated a statistically significant difference in jury verdicts (P = 0.01411) and procedural error was the leading reason for pursuing litigation, followed by lack of informed consent and unnecessary procedure performed.

LIMITATIONS

There is more than one database that captures medicolegal claims brought against practitioners. Westlaw, which has been previously utilized by other studies, is only one of them and the extent to which overlap exists in unclear. For each, data input are not necessarily consistent and data capture are not complete. As a result, there could exist a skew toward more severe complications and the details of individual cases likely vary. During data extraction, we found that all details of the procedure were not always included. For example, not all cases specified the type of injectate utilized for epidural injection (i.e., local anesthetic, steroid, mixture, and others) or route of injection (i.e., transforaminal vs. interlaminar). Moreover, as previously mentioned, cases that are settled out of court or finalized prior to trial are not necessarily reported by the Westlaw database, and therefore were not always included in our data search.

CONCLUSIONS

Overall, interventional pain medicine physicians were favored by jury verdicts for malpractice claims. However, when filtering by procedure or setting, jury verdicts favored the plaintiff in some cases.

KEY WORDS

Interventional pain, medical, malpractice, anesthesiology.

Structure of the Anesthesia Intensive Care Units: Recommendations of the Intensive Care Section of the Spanish Society of Anaesthesiology

BACKGROUND AND OBJECTIVE

In this article, the Intensive Care Section of the Spanish Society of Anesthesiology (SCI-SEDAR) establishes new recommendations based on the standards published by the Ministry of Health, Consumer Affairs and Social Welfare and aligned with the principle international guidelines, and develops a tool to improve quality and efficiency.

MATERIALS AND METHOD

Over a 12-month period (2018), 3 members of the SCI-SEDAR defined the methodology, developed the recommendations and selected the panel of experts. Due to the limited evidence available for many of the recommendations and the significant structural differences between existing anesthesia intensive care units, we chose a modified Delphi approach to determine the degree of consensus.

RESULTS

The panel consisted of 24 experts from 21 institutions. The group put forward 175 recommendations on 8 sections, including 129 with strong consensus and 46 with weak consensus.

CONCLUSIONS

The SCI-SEDAR has established a series of structural recommendations that should be used when renovating or creating new anesthesia intensive care units.

Facing internet fake-medicine and web para-pharmacy in the total absence of official recommendations from medical societies

PURPOSE

Internet fake information, parapharmacy and counterfeit drugs are a market of hundreds of billion dollars. Misleading internet data decrease patients' compliance to medical care, promote use of questionable and detrimental practices, and jeopardize patient outcome. This is particularly harmful among cancer patients, especially when pain and nutritional aspects are considered. Provision of Web recommendations for the general audience (patients, relatives, general population) from official medical-providers might be useful to outweigh the detrimental internet information produced by non-medical providers.

METHODS

370 oncology and anesthesiology related societies were analyzed. Our objective was to evaluate the magnitude of web-recommendation for cancer cachexia and cancer pain for the general audience provided by official medical organizations' web sites at global level.

RESULTS

Magnitude of web-recommendations at global level was surprisingly scant both for coverage and consistency. Seven official medical societies provided updated web-recommendation for cancer cachexia to their patients/family members, and 15 for cancer pain. Scantiness was unrelated by continent, developmental index, oncology tradition, economic-geographic area and society type scrutinized.

CONCLUSIONS

Patients need expert advice when exposed to fake internet information largely dominated by paramedical market profits. In this era of "new media" the patients' net-education represents a new major educational challenge for medical societies.

A Contemporary Analysis of Medicolegal Issues in Obstetric Anesthesia Between 2005 and 2015

BACKGROUND

Detailed reviews of closed malpractice claims have provided insights into the most common events resulting in litigation and helped improve anesthesia care. In the past 10 years, there have been multiple safety advancements in the practice of obstetric anesthesia. We investigated the relationship among contributing factors, patient injuries, and legal outcome by analyzing a contemporary cohort of closed malpractice claims where obstetric anesthesiology was the principal defendant.

METHODS

The Controlled Risk Insurance Company (CRICO) is the captive medical liability insurer of the Harvard Medical Institutions that, in collaboration with other insurance companies and health care entities, contributes to the Comparative Benchmark System database for research purposes. We reviewed all (N = 106) closed malpractice cases related to obstetric anesthesia between 2005 and 2015 and compared the following classes of injury: maternal death and brain injury, neonatal death and brain injury, maternal nerve injury, and maternal major and minor injury. In addition, settled claims were compared to the cases that did not receive payment. χ, analysis of variance, Student t test, and Kruskal-Wallis tests were used for comparison between the different classes of injury.

RESULTS

The largest number of claims, 54.7%, involved maternal nerve injury; 77.6% of these claims did not receive any indemnity payment. Cases involving maternal death or brain injury comprised 15.1% of all cases and were more likely to receive payment, especially in the high range (P = .02). The most common causes of maternal death or brain injury were high neuraxial blocks, embolic events, and failed intubation. Claims for maternal major and minor injury were least likely to receive payment (P = .02) and were most commonly (34.8%) associated with only emotional injury. Compared to the dropped/denied/dismissed claims, settled claims more frequently involved general anesthesia (P = .03), were associated with delays in care (P = .005), and took longer to resolve (3.2 vs 1.3 years; P < .0001).

CONCLUSIONS

Obstetric anesthesia remains an area of significant malpractice liability. Opportunities for practice improvement in the area of severe maternal injury include timely recognition of high neuraxial block, availability of adequate resuscitative resources, and the use of advanced airway management techniques. Anesthesiologists should avoid delays in maternal care, establish clear communication, and follow their institutional policy regarding neonatal resuscitation. Prevention of maternal neurological injury should be directed toward performing neuraxial techniques at the lowest lumbar spine level possible and prevention/recognition of retained neuraxial devices.

Medicolegal Claims against Anaesthetists: A 20 Year Study

A total of 222 medicolegal claims involving 160 anaesthetist members of Victoria's largest medical indemnity organization during the period 1980 to 1999 are reported, with 35% of anaesthetists having a claim. There were 49 claims in the fist decade and 173 in the second, with 84 related to dental injury being predominant. Other common causes of claims were awareness, epidural anaesthesia, coronial enquiries, nerve palsies, postoperative complications and circulatory arrest. Anaesthetists were joined with surgeons in 17 claims. The average delay between the incident and the resolution of the claim was 11 months for dental claims and 46 months for non-dental ones.

Anaesthetic Adverse Incident Reports: An Australian Study of 1,231 Outcomes

While there have been previous studies looking at patterns of litigation against anaesthetists overseas, there is little reported on the trends in Australia. This study was performed to ascertain current reporting rates of anaesthetic incidents, and from what areas these reports arise. Over the five years spanning January 1999 until December 2003, 1,231 adverse anaesthetic outcomes were reported to United Medical Protection by Australian anaesthetists. As in other studies, damage relating to airway instrumentation was the most frequently reported, comprising 261 incidents (21.8%). Complications related to epidural blockade were the next most common, accounting for 182 outcomes (15.2%). Other common areas generating incident reports included nerve injuries, respiratory complications, drug side-effects and death. To date 147 claims (12.3%) have arisen from these incident reports. Knowledge of these areas of risk should translate into more effective risk management with reduction in claims and adverse patient outcomes.

The Influence of the Current Medicolegal Climate on New South Wales Anaesthetic Practice

A survey was posted to all New South Wales and Provisional Fellows of the Australian and New Zealand College of Anaesthetists to assess the influence of the current medicolegal climate on their anaesthetic practice. Information collected included demographics, opinions regarding the current medico-legal climate, medical defence organizations, and the implications for anaesthetic practice. The response rate was 78% (640/820). Nearly all (95.3%) were concerned about the current medical indemnity crisis and 80.5% felt concerned about the financial security of medical insurers. Of all these respondents 23.6% had personal experience of litigation and 73.6% expected to have a claim made against them during their career. Respondents spent an average of 8.3% of their gross annual income on medical insurance premiums and 47.2% are concerned about the viability of their practice given the rising costs of medical insurance. Obstetric anaesthesia was the most common area of practice to be ceased due to medicolegal concerns. In the next two years, 20.2% of obstetric anaesthetists who responded intend to cease practice. In the past two years, 3.1% of respondents retired due to their litigation concerns, while 12.8% (average age 56.7y) are intending to retire in the next two years for the same reasons. Changes to the conduct of the preoperative consultation were common. Other changes to practice included more thorough documentation of complications (50.8%) and a strong reluctance to perform neuraxial blocks (54%). This survey suggests that anaesthetists are concerned about the current medicolegal climate and as a result, some are retiring earlier and giving up high-risk areas of practice.

The History of Anaesthetic Mortality Reporting

Anaesthetists are acutely aware of the legal constraint of reporting to the coroner deaths in association with anaesthesia. The evolution of the office of the coroner in England is presented and the relationship with the discovery and evolution of anaesthesia is examined. The legal and medical climate in the 19th century is described, with some of the key participants named and their roles explained. The 19th century was an age of questioning and exploration, which led to the elucidation of the problems with chloroform and set the path for progress in monitoring in anaesthesia. Comments are made on the development of anaesthetic mortality reporting into its current system and some of the benefits flowing from it. The collaboration of the various state mortality committees in producing a triennial national report is an important way to ensure that the lessons of the past are kept in mind in the present. The author believes that mortality reporting, the analysis of data and the dissemination of information is a valuable field of research, monitoring and educational tool. Primum non nocere is particularly pertinent in anaesthesia.

Alleged malpractice in anesthesiology: analysis of a series of private insurance claims

BACKGROUND

Medical malpractice is currently a crucial topic and anesthesia is a key specialty for the improvement of patient safety. However, death and permanent impairment due to anesthesia still occur and studies of insurance analysis data are increasing. We investigated the main features of a major Italian insurance broker's archive in order to identify possible recurrent pitfalls in this critical field of medicine.

METHODS

Three hundred seventeen Italian claims were analyzed, filling out a standardized form that recorded information on patient and physician's characteristics, procedures, sequence and location of events and outcomes. The operative setting, the type of anesthesia performed the origin of the multidisciplinary team malpractice hypothesis, the final clinical outcome and the malpractice investigation results were also analyzed.

RESULTS

In 225 malpractice claims, the adverse event was surgery-linked, either intraoperatively (114 cases) or postoperatively (111 cases): abdominal surgery (26%), orthopedics (22%), gynecology (20%), heart surgery (11%) and neurosurgery (9.5%) were the most frequently involved surgical specialties. In 92 cases, the claim was unlinked to a surgeon's activity, with dental damage in oral intubation procedures as the greatest contributor (42.3%). Anesthetists' malpractice was technically ascertained in 39% of cases, 74.8% resulting in permanent impairment.

CONCLUSIONS

Malpractice was mainly suspected in surgery-linked procedures. Most of the claims were settled for procedural error in performing locoregional anesthesia and oral intubation procedures. 60% of all closed claims resulted in no malpractice ascertained. Confirmed malpractice typically deals with non surgery-linked and non multidisciplinary team cases, causing permanent impairment.

[Liability in Anaesthesiology: theory of disproportionate damage]

An analysis is made of the controversial application of the theory of disproportionate damage in the anaesthetic act, due to the high inherent risk, and regardless of the seriousness and importance of the surgery being performed. The existence of a disproportionate damage, that is, damage not foreseen nor accountable within the framework of the professional performance of the anaesthetist, does not by itself determine the existence of liability on the part of the anaesthetist, but the demand from the professionals themselves for a coherent explanation of the serious disagreement between the initial risk implied by their actions and the final consequence produced.

Who is the patient? Disclosure of information and consent in anesthesia and intensive care (informed consent)

Physicians have always strived to uphold all the ethical postulates of the medical profession in all aspects of the practice, however with the vast advances in science and technology, numerous ethical dilemmas regarding all aspects of life and ultimately death have emerged. Medical decisions however, are no longer in the sole jurisdiction of traditional Hippocratic medicine but are now deliberated and delivered by the patient and they are comprised of a number of additional determining aspects such as psychological, social, legal, religious, esthetic, administrative etc., which all together represent the complete best interest of the patient. This is the basic goal of the "Informed Consent". The widening of legal boundaries regarding professional liability may consequentially lead to a "defensive medicine" and a deterioration in the quality of healthcare. In the Republic of Croatia there a four types of liability and the hyperproduction of laws which regulate healthcare geometrically increase the hazards to which physicians are exposed to on a daily basis. When evaluating the Croatian informed consent for anesthesia, we can come to the conclusion that it is completely impractical and as such entirely unnecessary. Anesthesiologists should concentrate on an informed consent which would in brief explain all the necessary information a "reasonable" anesthesiologist would disclose to a "reasonable" patient so that a patient could undertake a diagnostic or therapeutic procedure unburdened and with complete confidence in the physicians who are involved in the treatment of the respective patient.

[Code of civil procedure for medical workers--evidence of fact finding and efficacy of judgment]

For a fair trial, fact finding shall certainly be based on evidence, and examination of evidence is performed using means, such as documentary evidence, validity, examination, and expert opinion. In fact finding, in order to eliminate a judge's arbitrariness and to secure justice, we have to make the process of fact finding rational and objective. For this reason, the court must recognize the fact used as the foundation of judgment based on the presented proof on the basis of participation of both parties concerned. As an effect of the judgment, there ensure res judicata and power of execution. They serve as a binding force to a next trial.

State regulations governing oral sedation in dental practice

PURPOSE

The purpose of this study was to survey 50 state dental boards concerning their regulations governing the practice of moderate sedation administered by the oral route.

METHODS

An online search was conducted to review each state's dental practice act. When interpretation of the information provided online was difficult, clarification was achieved by contacting that state board directly by telephone interview. To assist in further interpretation, the ADA's Statutory Guidelines for Conscious Sedation Permit were reviewed for comparison with the data collected.

RESULTS

Forty-one states required a permit to administer moderate sedation by the oral route. Every state except Kansas required minimum didactic educational requirements for permit issuance. Every state required monitoring of the patient throughout the procedure and during recovery until discharge. In addition, all states expected the practitioner and clinical staff to be adequately trained to manage a sedation-related emergency.

CONCLUSIONS

State dental boards have significantly increased regulation of oral sedation over the past 10 years, but vary widely in their permit requirements for issuance. This dis-harmony among the states should foster the national desire to develop a more unified approach in regulating oral sedation.

[Sexual hallucinations and dreams under anesthesia and sedation : medicolegal aspects]

Dreams and hallucinations under sedation or anesthesia have been well known phenomena since the introduction of anesthesia. Sexual hallucinations may lead to allegations of sexual molestation or assault by medical doctors or professional nursing staff. Hallucinations under the influence of sedative or hypnotic drugs may be very vivid and as misinterpreted as being real and it is therefore often difficult to disprove the resulting false allegations. In this report the terms drug-induced dreams and hallucinations are defined and the probable mechanism described. By a historical review and case reports the medicolegal consequences are demonstrated and procedures recommended to avoid allegations of sexual assault.

[French clinical guidelines for prevention of perianaesthetic dental injuries: long text]

INTRODUCTION

Dental injuries represent the most common claims against the anaesthesiologists. Dental lesions are frequent complications of orotracheal intubation and major causal factors are, firstly, preexisting poor dentition, and, secondly, difficult laryngoscopy and tracheal intubation. The aim of this work was to prioritize propositions for prevention in perianaesthetic dental injury and for care in case of dental trauma.

METHOD

A GRADE consensus procedure consisting of three rounds was conducted. A purposively selected heterogeneous panel (n=15) of experts, comprising 10 practitioners in anesthesiology, one practitioner who is jurist and anaesthesiologist, two practitioners in maxillofacial surgery, and two practitioners in dentist surgery. In cases where the data did not appear conclusive, recommendations were based on the consensus opinion of the board members. The guidelines represent the best current evidence based on literature search and professional opinion.

RESULTS

The entire panel completed all three rounds and 31 plus six propositions were written for adult and paediatric clinical practice in anaesthesiology, respectively. The experts highlight the interest of preoperative visit for minimizing dental injuries: the practitioner must identify risk factors for difficult intubation and ventilation, describe precisely patient's preoperative dental condition, including upper incisor most commonly involved teeth in dental trauma. Patients have to be informed by practitioner for risk dental injury and anaesthesiology staff must choose his anesthesia protocol before the induction of intubation narcosis, avoiding insufficient anaesthesia and lack of experience by the anaesthesiologist. The choice of accurate proceeding during laryngoscopy, tracheal intubation and extubation for example, can aid in the prevention of dental injury, reduce the number of claims and the cost of litigation process.

DISCUSSION

These guidelines delineate an approach for the prevention of perianaesthetic dental trauma and for the immediate or urgent care in case of perianaesthetic dental injury.

Anxiety control in the dental patient

Oral sedation with benzodiazepines and anxiolysis with nitrous oxide are 2 effective methods to help alleviate anxiety and fear of dental procedures. Many patients would prefer to have their dentistry performed with sedation if it were offered to them. This article presents a detailed discussion on minimal sedation that should give the reader a good understanding of this valuable aspect of clinical care.

[Risk management in regional anesthesia: current trends in medical professional liability insurance]

This article aims to highlight current trends in medical professional liability insurance. We present two cases of the lawsuit associated with regional anesthesia. Case 1: Cardiac arrest during femoral neck fracture surgery under combined general anesthesia and epidural anesthesia. Case 2: Neurologic complications following cystectomy under combined general anesthesia and epidural anesthesia. To avoid malpractice risks, it is important to fully understand the risks of this clinical role and how to protect yourself from potential lawsuits. Every anesthesiologist should feel obliged to pay attention to legal questions concerning medical subjects, though judgments on the contents and the extent of the informationthat must be given to patients are complex and difficult to understand for anybody not experienced in law.

[Ultrasound-guided regional anaesthesia and the common classification of medical acts by the social security]

Ultrasound imaging is a major technological advance in the practice of regional anesthesia. For the social security, their rationale relies on the concept of a global medical act i.e., each medical act is worked out, in order to describe the realized medical act totally. At present the social security uses this concept to prevent the anesthetists from quoting a supplementary ultrasound act. In this article we discuss the legitimacy of quoting ultrasound-guided regional anaesthesia.

[Organisation of anaesthesia management in obstetrics: normative legal documents of the American Society of Anesthesiologists]

A review highlights the fundamental positions of providing the anaesthesia care in delivery. Features of neuroaxial blocks in labour and surgical delivery are considered and the conditions of safe anesthesia care for both mother and foetus are estimated.

Pandemic influenza: human rights, ethics and duty to treat

The 2009 influenza A/H1N1 pandemic seems to be only moderately severe. In the future, a pandemic influenza with high lethality, such as the Spanish influenza in 1918-1919 or even worse, may emerge. In this kind of scenario, lethality rates ranging roughly from 2% to 30% have been proposed. Legal and ethical issues should be discussed before the incident. This article aims to highlight the legal, ethical and professional aspects that might be relevant to anaesthesiologists in the case of a high-lethality infectious disease such as a severe pandemic influenza. The epidemiology, the role of anaesthesiologists and possible threats to the profession and colleagueship within medical specialties relevant to anaesthesiologists are reviewed. During historical plague epidemics, some doctors have behaved like 'deserters'. However, during the Spanish influenza, physicians remained at their jobs, although many perished. In surveys, more than half of the health-care workers have reported their willingness to work in the case of severe pandemics. Physicians have the same human rights as all citizens: they have to be effectively protected against infectious disease. However, they have a duty to treat. Fair and responsible colleagueship among the diverse medical specialties should be promoted. Until disaster threatens humanity, volunteering to work during a pandemic might be the best way to ensure that physicians and other health-care workers stay at their workplace. Broad discussion in society is needed.

Student-to-student local anesthesia injections in dental education: moral, ethical, and legal issues

This article reports the findings of a survey-based study conducted to determine U.S. dental schools' institutional protocols regarding the practice of students' administering local anesthetic injections to fellow students as part of their process of learning this skill. The majority of schools ask students to practice local anesthetic injections on each other without obtaining informed consent.

Identifying violation-provoking conditions in a healthcare setting

Procedural violations (intentional deviations from established protocols) are prone to occur in many occupational settings, with a potentially detrimental effect on quality or safety. They are thought to result from organisational practices and the social characteristics of rule-related behaviour. This study makes use of qualitative methods to investigate the nature and causes of violations in anaesthetic practice. Twenty-three consultant anaesthetists took part in the study, which involved naturalistic observations and semi-structured interviews. Several factors influencing anaesthetic violations were identified. These include the nature of the rule, the anaesthetist (both as an individual and as a professional group) and the situation. Implications for the understanding and management of human reliability issues within an organisation are discussed. This study provides an insight into procedural violations, which pose a threat to organisational safety but are distinct from human errors. The study also demonstrates the value of qualitative methods in ergonomics research. It is of relevance to researchers and practitioners interested in human reliability and error, especially in healthcare.