http://www.ncbi.nlm.nih.gov/pubmed/23361657

Laryngoscope. 2013 Jan 29. doi: 10.1002/lary.23995. [Epub ahead of print]

Characterizing liability for cranial nerve injuries: A detailed analysis of 209 malpractice trials.

Svider PF, Sunaryo PL, Keeley BR, Kovalerchik O, Mauro AC, Eloy JA.

Source

Department of Otolaryngology-Head and Neck Surgery, University of Medicine and Dentistry of New Jersey, New Jersey Medical School, Newark, New Jersey.

Abstract

OBJECTIVES/HYPOTHESIS:

The potential for adverse events with lasting functional effects makes cranial nerve (CN) injury a target for litigation. Our objective was to comprehensively examine records of malpractice trials and detail issues influencing outcomes.

STUDY DESIGN:

Retrospective analysis.

METHODS:

The Westlaw database (Thomson Reuters, New York, NY) was searched for jury verdict reports related to medical malpractice and CN injury. After excluding nonrelevant cases, we examined 209 trials for characteristics including nerve(s) injured, alleged causes of malpractice, demographic information, specialty, and outcome.

RESULTS:

The most commonly litigated CNs were VII (24.4%) and II (19.6%). Sixty-nine (33.0%) trials resulted in damages awarded. Outcomes varied, ranging from a 29.2% plaintiff success rate for CN XI injury to 48.4% for CN II injury. Plaintiffs had less success with increasing age. Average damages awarded were $1.7 million. The most commonly named defendants were otolaryngologists and general surgeons. Individual considerations varied but commonly included alleged deficits in informed consent (25.4%), unnecessary procedures (14.8%), undergoing additional surgery (25.8%), and untimely recognition of complications (23.9%).

CONCLUSIONS:

Malpractice trials were resolved in the defendant's favor the majority of the time. In cases where plaintiffs were successful, however, awards were considerable, averaging nearly $2 million. Factors influencing case outcome included age, location, perceived deficits in informed consent, allegedly unnecessary surgery, requiring additional surgery to repair a complication, and untimely recognition of complications. Although specific factors should be taken into consideration with each procedure, providing detailed informed consent and communicating with patients regarding expectations may minimize liability.