A review of paid otorhinolaryngology claims from 2009-2016 revealed that inappropriate surgical technique/treatment and failure to diagnose were the most common allegations. Often times the failure to timely diagnose was not the result of a lack of clinical judgment or medical expertise, but rather, was the result of the failure to follow up on a test result or missed appointment or the mishandling of a telephone message. Consistent systems and processes are crucial to ensure continuity of care.
Inadequate documentation was noted to be present in over half of the cases reviewed and was the most prevalent factor contributing to the inability to defend against allegations of inappropriate technique/treatment. One example involved a 59 year old obese patient with an extensive medical and surgical history who underwent a colon resection for adenocarcinoma. The insured ENT physician was consulted post-operatively and agreed a tracheostomy was advisable in the face of long-term intubation. The patient’s hospital course was remarkable for sepsis, respiratory compromise with subglottic stenosis, pulmonary edema, atelectasis with pleural effusions and repeated failed extubation attempts. The patient was discharged home with the tracheostomy tube in place. Insured removed the tube in his office 3 weeks later. The patient arrested and died at home several hours after the removal. The lawsuit alleged negligent removal of the tracheostomy tube. Complicating the defense of this allegation was the fact that the insured ENT had virtually no documentation to support his assertion that he did a proper assessment and evaluation of the patient’s respiratory status before and after removal of the tracheostomy tube. The fact that the patient died shortly after extubation, along with numerous notes in the hospital record by the treating pulmonologist that the physician removing the tracheostomy tube should carefully evaluate the subglottic area prior to tube removal, led to the settlement of the case.
In another case, a 5 year old patient, with a history of asthma, underwent an uneventful adenotonsillectomy with ventilation tubes. Shortly after being transferred from recovery to the floor, the patient developed an adenoid bleed. The insured ENT was called and elected to treat the bleeding with Neosynephrine and a FloSeal injection. Shortly thereafter the patient began coughing up large amounts of blood and clots and was returned to the operating room where the bleeding was controlled. However, the child developed respiratory symptoms requiring hospitalization for several weeks. The plaintiffs asserted that the ENT was negligent in opting to treat the post op bleeding with the Neosynephrine and FloSeal rather than proceeding immediately with surgical intervention. They argued that the patient aspirated blood, which caused the prolonged respiratory problems. The defendant physician argued that such treatment was appropriate and, in fact, the bleeding did stop following the initial treatment and that the patient’s respiratory issues were most likely secondary to exacerbation of asthma rather than the bleeding. Unfortunately, there was no documentation to support his assertion that he (1) examined the patient to determine the source of the bleeding and (2) confirmed that the bleeding had stopped following administration of the Neosynephrine and FloSeal. Without documentation to corroborate the physician’s assertions, the plaintiffs were persuasive in arguing that the patient, in fact, continued to bleed following application of the Neosynephrine and FloSeal and therefore aspirated the blood due to the nasal occlusion with Floseal.
Communication breakdowns likewise played a part in the initiation of a number of the claims reviewed as well as the indefensibility. Problems with communication were identified in 28% of the claims reviewed, nearly all of which involved direct physician to patient breakdowns. The failure of the physician to discuss material and significant risks associated with the procedure, as well as expected outcomes, most often led to unrealistic expectations on the part of the patient which, in turn, resulted in frustration and dissatisfaction in the face of a complication. Further, the failure to document the process when complications did occur, provided the opportunity for the plaintiffs to contend that they did not receive the relevant and required information needed to make an informed treatment decision, and, if they had, would have sought a more conservative course or a second opinion. Specifically, lack of informed consent was alleged when a patient suffered a cribiform plate injury during an endoscopic nasal polypectomy as well as when another patient suffered injury to the optic nerve during endoscopic sinus surgery, resulting in total blindness in one eye.
Surgical burns were the cause of a number of claims reviewed. Several cases involved bovie burns during tonsillectomies. One case involved ChloroPrep solution, which was inadvertently splashed into the patient’s eye during surgery for tumor removal which caused a corneal burn and scarring.
Shelly Weatherly is Vice President, Risk Education and Evaluation Services for SVMIC. Ms. Weatherly graduated from the University of Tennessee School of Law, is a member of the Nashville and Tennessee Bar Associations, and has been with SVMIC for 26 years. Prior to joining SVMIC, Ms. Weatherly served as Law Clerk on the Tennessee Court of Appeals for the Honorable William C. Koch, as well as on the U.S. District Court for the Middle District of Tennessee under the Honorable Charles Neese. Ms. Weatherly leads SVMIC's Risk Education and Evaluation Services. Prior to 2015, she developed and administered the company's Risk Evaluation Services and earlier served as a Claims Attorney. She is a frequent speaker on risk management, liability assessment, and professional liability topics at medical professional association meetings, medical schools and residency programs, and industry seminars.
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