Photo by Pixabay from Pexels
Claims of malpractice are always a source of stress and concern for practitioners who are sued, but looking at them retrospectively provides valuable information which can help mitigate malpractice risk.
In this malpractice case study, orthognathic surgery performed on a young and seemingly healthy patient led to serious complications due, in large part, to an undiagnosed underlying medical condition.
The case presented, which ended up in litigation against several medical providers, takes you through the pre-, intra- and post-operative phases of treatment, explores the legal concepts of negligence and informed consent, and explains the court’s actions in response to the legal defense team’s strong advocacy approaches. The risk management principles demonstrated go well beyond the facts and circumstances presented here and may be incorporated into everyday practice.
A 17-year-old high school elite basketball star presented to a cosmetic facial surgeon with complaints of a “gummy smile” and a “very pronounced” lower jaw. His initial presentation was in early spring, prior to the end of his junior year. Based upon clinical and radiographic assessments, he was determined to have the skeletal disorders of a vertical maxillary excess with a prognathic mandible. The surgeon suggested an orthognathic surgery plan of a maxillary LeFort I osteotomy to impact the maxilla vertically and decrease his facial height, in conjunction with bilateral mandibular vertical oblique osteotomies to set the lower jaw back. The procedures would require a short hospital stay with surgery under general anesthesia.
In consultation with his parents, the patient agreed to go forward with the planned procedures, but they wanted the surgery to be performed at a time such that he would be fully healed and ready to be back on the basketball court in the fall, so that he could play in front of college scouts whom he realistically anticipated recruiting him on a scholarship. Surgery was scheduled for the end of June, as soon as the summer school break began.
In the pre-operative phase, the seemingly healthy patient was referred for medical clearance and standard laboratory testing. Because of personal preferences, he opted against the advice of the surgeon to donate his own blood in advance, to allow for an autologous transfusion if required, with the understanding that, if he required transfusion, he would be given banked blood. A detailed standard informed consent process took place between the surgeon, patient and parents, with the parents signing the surgeon’s usual consent form that contained what the surgeon believed were the foreseeable risks; nothing in the form documented the surgeon’s verbal explanation that trauma to the face prior to full bony healing at approximately six months post-surgery (as might occur in a basketball game) could be detrimental to the surgical result.
The surgery went smoothly, with no problematic intra-operative events, and there was apparent hemostasis before the patient was sent to the recovery room, with the patient in maxillo-mandibular fixation, as would be in place for some six weeks. At some point within the first few hours, he began to ooze dark red blood from all through his oral cavity, and he developed significant and increasing swelling in the mid- and lower-face regions. Laboratory testing revealed significant blood loss, so he was returned to the operating room, where he was immediately transfused with packed red blood cells per the direction of the medical consultant and, once anesthetized, all surgical sites were re-opened, and the maxilla was re-downfractured. Surgically, no large vessel intrusions were noted, so all sites were irrigated and cleaned, with fixation devices reapplied. Slowly, the bleeding lessened, and it remained fully controlled as the hours passed.
Suspecting that the issue was hematological and not surgical, based upon the series of events, the surgeon obtained further internal medicine consultation, which led to a diagnosis of Von Willebrand Disease, an inherited non-sex-linked (unlike hemophilia) bleeding disorder associated with an (intermittent) decrease of a protein needed to properly form stable blood clots. Usual pre-op blood work does not necessarily test for this, especially when in mild form, and there had been no reported prior bleeding episodes to alert the surgeon or internist of a potential problem. The patient recovered well in the short term, with the internist commenting that the patient’s unwillingness to provide an autologous blood donation, thereby necessitating the use of another’s blood, seemingly played a helpful role in resolution.
However, the patient continued to claim over the following weeks that he felt weak and easily winded, attributing that in his mind to the surgical blood loss. The hematologist advised the patient that he had a mild deficiency in red blood cells, but not enough to warrant a diagnosis of anemia or treatment for it. At the end of August, after all fixation devices had been removed, he began basketball practice with his school teammates. During routine drills, he fell to the ground because he “felt weak and short of breath,” striking his head and face; he immediately felt that his jaws were not aligned as they had been up until that point post-surgically. He returned to the surgeon, who, after clinical and radiographic examination, determined that the trauma had caused minor movements of the osteotomized bony segments, necessitating the reapplication of the intermaxillary fixation for an additional six weeks. The patient was, therefore, sidelined from basketball for the fall season and was not offered the college scholarship he had hoped for.
An attorney was retained who filed suit on behalf of the patient—now plaintiff. Both the surgeon and internist were named as defendants for having been negligent in their care and treatment of the plaintiff. The surgeon was also accused of failing to provide informed consent regarding the risks and potential outcomes of playing basketball after surgery. Regarding the negligence claims, the assertions against the surgeon focused on his having caused excessive surgical bleeding, which led to the significant blood loss that caused the damages; the claims against the internist centered upon his having failed to address the “post-surgical anemia.”
The plaintiff sought monetary damages which were primarily based upon his having “passed out” on the basketball court, which caused the need for additional fixation to stabilize the bony changes, the resulting inability to play basketball during recruiting season, and the consequent loss of the college scholarship he had hoped for and been told he was a “shoe in” for.
The Litigation Process
Based upon the claims of negligence and damages, attorneys for the doctors filed papers, known as motions for summary judgment, seeking to dismiss the claims. With the support and affidavits of surgical and medical experts, the attorneys argued, as to the surgeon, that his surgical technique was in full compliance with the standard of care, that the post-surgical bleeding was entirely due to the undiagnosed underlying bleeding disorder rather than any improper surgical steps, and that Von Willebrand Disease would be quite unlikely to be diagnosed by the laboratory studies which are standard before surgery of this type on healthy patients. Regarding the internist, the attorneys contended that the objective post-surgical laboratory tests demonstrated that the plaintiff’s red blood cell count fell within the normal range, albeit on the lower end, thereby requiring no intervention as might be required if he were truly anemic.
As is permitted, and essentially always done, the plaintiff’s attorneys argued to the court in opposition. However, the judge determined that the surgeon followed usual surgical protocol which was, in fact, not challenged by the plaintiff’s expert, and that, with no prior reported bleeding history by the patient, there had been no necessity for the specialized pre-surgical blood testing that would have more likely led to the Von Willebrand’s diagnosis, as had been promulgated by plaintiff’s expert. Additionally, the court found that the internist had no obligation under the standard of care to treat a condition – anemia – which was not confirmed by standard objective testing. Therefore, all negligence claims were dismissed.
Regarding the claim of lack of informed consent against the surgeon, the court reasoned that, because the surgeon did not document his verbal warning about the effects of potential trauma after surgery, and the plaintiff and his parents contended that such advice was never provided to them, that claim could not be dismissed due to the question of fact between the parties, thereby requiring a jury’s determination. However, because the plaintiff’s ultimate damages claim was that he lost out on a scholarship that would have eliminated the nearly $250,000 in tuition costs that he was now forced to pay, the judge held that the basis of the claim was speculative: even though the plaintiff was the top prospect from his high school, and even from the entire region, there was no assurance that basketball scouts and coaches would have necessarily viewed his abilities to be at the level of top-tier college players, and offered the scholarship he had sought. Therefore, the lack-of-informed-consent claim was also dismissed on this basis, ending all of the plaintiff’s claims.
In order for a malpractice claim to succeed, a plaintiff must demonstrate, through non-speculative and science-based testimony, that the doctor departed from the standard of care, thereby directly causing the injuries/damages claimed. Unless all of those elements are established, the case will not proceed to trial. Here, regarding the negligence claims against both defendants, there was no credible basis, in the eyes of the court, for those assertions to stand, warranting their dismissal. As to the consent issue, while the surgeon failed to document what would later become an important part of the process, the fact that, again in the eyes of the court, the damages claim was based upon speculation, that prong could not be “legally” proven, so it, too, was dismissed.
Many doctors believe that, once they are sued, they must either agree to a settlement or go before a trial jury, which will determine the fate of the case. That is not true. There are times that plaintiffs and their attorneys will discontinue a case because defense counsel demonstrate to them that the weaknesses of the case will be too difficult to overcome, or they cannot afford to retain high quality experts for trial or pre-trial proceedings, or because they never intended from the start to take their cases to trial but instead hoped to obtain a settlement which never came. Furthermore, as this case demonstrates, there are situations which warrant case dismissals before trial because the underlying facts and assertions do not meet the legal requirements.
As a cosmetic surgeon, it is imperative to obtain malpractice insurance from a company that retains attorneys who are intimately familiar and experienced with the legal maneuvers and medical considerations necessary to properly defend a case and willing to spend often significant sums of money to hire experts who have real expertise in the medical matters involved.
It cannot be emphasized enough that chart documentation at the time of treatment, patient meetings, telephone calls, and all patient interactions are critical to the defense of a malpractice lawsuit. That documentation should be contemporaneous with the event it records, should be accurate, and should be complete. Plaintiffs’ attorneys are known to argue to juries, “If it wasn’t written, it didn’t really happen”. While that may or may not be true, it is an argument often accepted by juries. Finally in this respect, medical records should never be altered; if a doctor realizes after a note is entered that it requires modification, that change should be made as an addendum, with a brief explanation as to why it was made. Alteration of medical records is a crime in some jurisdictions, and it makes the defense of a malpractice claim much more difficult, if not impossible.
MedPro Group’s risk consultants are available to discuss all of the issues raised in this case study, as well as any other questions or concerns you may have regarding malpractice insurance or the malpractice litigation process.
As the nation’s leading dental malpractice insurance carrier, MedPro Group has unparalleled success in defending malpractice claims and providing patient safety & risk solutions. MedPro is the nation’s highest-rated malpractice carrier, rated A++ by A.M. Best. The Berkshire Hathaway business has been defending dentists’ assets and reputations since 1899 and will continue to for years to come.
*Note that this case presentation includes circumstances from several different closed cases, in order to demonstrate certain legal and risk management principles, and that identifying facts and personal characteristics were modified to protect identities.
This document does not constitute legal or medical advice and should not be construed as rules or establishing a standard of care. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions.
The opinions expressed through this post are the opinions of the individual authors and may not reflect the opinions of MedPro Group or any of its individual employees. This document should not be construed as medical or legal advice. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors if you have any questions related to your legal or medical obligations or rights, state or federal laws, contract interpretation, or other legal questions. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are underwritten and administered by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and/or regulatory approval and may differ among companies. © 2022 MedPro Group Inc. All rights reserved.