Hearing Loss Resulting in Malpractice Litigation: What Physicians Need to Know

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1 The Laryngoscope VC 2012 The American Laryngological, Rhinological and Otological Society, Inc. Hearing Loss Resulting in Malpractice Litigation: What Physicians Need to Know Brian K. Reilly, MD; Gayle M. Horn, JD; Ryan K. Sewell, JD, MD Objectives/Hypothesis: To evaluate the relationship between hearing loss and malpractice litigation. Study Design: Retrospective study evaluating state and federal civil malpractice litigation pertaining to physician treatment and patient hearing loss in the United States during a 10-year period ( ). Methods: A Westlaw search of the computer database Jury Verdicts-All for was performed using the search terms hearing loss and malpractice. This database includes jury verdicts, judgments, and settlements. Results: Niney-four cases were analyzed. There were 53 verdicts favorable for the defense (56%), 28 verdicts favorable for the plaintiff (30%), and 12 settlements. One case resulted in a mistrial. Settlements ranged from $42,500 to $12,500,000, and verdicts ranged from $0 to $8,784,000. The average payout for adult plaintiffs was less ($549,157) than the payout for minors ($1,349,121). The average payout for a surgical case was $579,098, compared to $960,048 for medical etiology of hearing loss. Otolaryngologists were the most frequently sued treating physician for hearing loss; the second most common defendant was pediatricians (eight cases). In the 13 cases in which an otolaryngologist was sued, there were nine defense verdicts and four verdicts in plaintiffs favor. The average indemnity for an otolaryngologist was $313,230. Conclusions: Otolaryngologists are successful in most (70%) hearing loss litigation brought against them. This is true regardless of whether the allegations are of medical error or include operative procedures. Pediatric patients received more favorable jury verdicts when litigating malpractice claims than their adult counterparts, and the payouts were highest when there was alleged birth trauma and/or meningitis. Finally, the severity and degree of hearing loss sustained correlate with higher payouts. Key Words: Hearing loss, litigation, malpractice, otolaryngology. Laryngoscope, 123: , 2013 INTRODUCTION Hearing loss is a common sensory impairment and affects millions of people. Hearing loss can lead to speech delay, social isolation, and even clinical depression. 1 Hearing loss affects approximately 5 per 1,000 children and nearly 37 million adults. 2 Untreated, the psychological and socioeconomic impact of hearing loss is both physically and emotionally damaging, with hearing-impaired individuals suffering from a lower quality of life and reduced income levels. 1,3 The numerous causes of hearing loss from drug toxicity to infection make this disease entity complex for all health care providers to treat and difficult for juries to dissect. From the Division of Otolaryngology, Children s National Medical Center and George Washington University Medical Center, Washington, District of Columbia, U.S.A. (B.K.R.); private practice, Loevy & Loevy, Chevy Chase, Maryland, U.S.A. (G.M.H.); and Children s Hospital, University of Nebraska Medical Center, Omaha, Nebraska, U.S.A. (R.K.S.). Editor s Note: This Manuscript was accepted for publication June 26, Presented at the Triological Society Combined Sections Meeting, Chicago, Illinois, U.S.A., April 27 28, The authors have no funding, financial relationships, or conflicts of interest to disclose. Send correspondence to Brian K. Reilly, MD, Division of Otolaryngology, Children s National Medical Center, 111 Michigan Ave., N.W., Washington, DC DOI: /lary The current medical malpractice environment has been well documented, and litigation analysis allows physicians to better understand their liabilities and risks. A recent study by the American Medical Association published by the American Academy of Pediatrics found that a near majority of physicians (42%) had been sued in their careers, with 95 medical liability claims being filed per 100 physicians. Five percent of practicing physicians had been sued in the past 12 months. 4,5 There have been no previous reports in the literature that have analyzed the relationship between malpractice litigation and hearing loss, although there have been studies examining malpractice and steroid use, facial nerve injury, and sinus surgery. 6 8 Otolaryngologists work closely with audiologists, speech therapists, pediatricians, and family practitioners to treat hearing loss, and as a result, they are often in the crosshairs of medical malpractice claims. The purpose of this paper is to analyze factors that create litigation including allegations of hearing loss to help physicians better understand their liabilities when treating hearing loss patients. MATERIALS AND METHODS This is a retrospective study evaluating state and federal civil litigation relating to hearing loss. A Westlaw search of the computer database Jury Verdicts-All for was performed using the search terms hearing loss and malpractice.

2 TABLE I. Alleged Causes of Hearing Loss. Causes of Hearing Loss Allegations Adult Pediatric Acoustic neuroma 9 0 Childbirth trauma 1 2 Cholesteatoma 1 2 Drug toxicity 13 4 Ear flush 4 0 Ear infection 7 4 Ear mold 1 0 Foreign body 0 2 Jaundice 0 3 Meningitis 2 11 Metabolic disorder 0 1 Ossiculoplasty 2 1 Removal of exotosis 1 0 Removal of facial mass 1 0 Stapedectomy 1 1 Transtympanic electrocochleogram 1 0 Trauma 3 0 Tumor 10 4 Tympanoplasty 1 0 Wisdom tooth extraction 1 0 The database includes jury verdicts, judgments, and settlements. The Westlaw database produces short summaries of the legal cases, providing information on the plaintiff, defendant, jurisdiction, attorneys, expert witnesses, verdict, and award amount. Jury verdict reports in the Westlaw database are voluntarily submitted by attorneys, and therefore do not constitute all jury verdicts or settlements in medical malpractice litigation. There were 124 cases that fit the search criteria of hearing loss and malpractice, 30 of which were excluded for insufficient data or because hearing loss was not actually alleged. Each of the 94 remaining cases was then analyzed for: 1) age of plaintiff, 2) presenting complaint, 3) etiology of hearing loss (categorized), 4) type of malpractice allegations lodged, 5) defendant s specialty, and 6) verdict and damages. With regard to the age of the plaintiff, minors were defined as individuals younger than 18 years. There were 39 cases that did not mention the specific age of the child. Fig. 1. Top five causes of adult hearing loss resulting in litigation. [Color figure can be viewed in the online issue, which is available at wileyonlinelibrary.com.] jaundice, meningitis, ossiculoplasty, removal of exotosis, removal of facial mass, stapedectomy, transtympanic electrocochleogram, trauma, tumor, tympanoplasty, wisdom teeth extraction, and failure to detect biotinidase deficiency. These 20 causes were then analyzed and categorized as either surgical or medical errors based upon information in the Westlaw synopsis (Table I). The causes of hearing loss varied between the adult and pediatric populations. The top five causes of hearing loss allegations for the adult and pediatric populations are listed below (Figs. 1 and 2). Meningitis (31%) was the leading cause of pediatric hearing loss, followed by drug toxicity (11%), ear infection (11%), and tumor (11%). In contrast, among the adult population, the leading causes of hearing loss in the malpractice cases reviewed were drug toxicity (22%), tumor (17%), and acoustic neuroma (15%). Notably, for both adult and pediatric patient-plaintiffs, hearing loss was often alleged RESULTS A total of 94 cases met criteria upon review. In our cohort, there were 59 cases brought by adults (63%) and 35 cases brought by minors (37%). The average age of the plaintiff was 29 years, and the range was 4 months to 70 years. Among the 94 cases evaluated, there were 52 defense verdicts following a trial, 20 plaintiff verdicts following a trial, 19 settlements, two arbitrations, and one mistrial. As such, in more than half of the cases (55.32%) there was no payout to the plaintiff. Causes of Hearing Loss In analyzing each of the 94 cases for the etiology of hearing loss, 20 causes were identified: acoustic neuroma, childbirth hypoxia, cholesteatoma, drug toxicity, ear flush, ear infection, ear mold, foreign body, Fig. 2. Top five causes of pediatric hearing loss resulting in litigation. [Color figure can be viewed in the online issue, which is available at wileyonlinelibrary.com.] 113

3 Fig. 3. Hearing loss malpractice allegations. [Color figure can be viewed in the online issue, which is available at wileyonlinelibrary.com.] as secondary to a larger medical injury for adults, as part of the impact of gentamicin toxicity or radiation exposure for cancer treatment and for minors, as the result of meningitis or hypoxia during childbirth. Each of the 20 causes of hearing loss allegations were then categorized as either surgical or medical events. There were more than three times the number of cases involving medical events as there were surgical events (74 vs. 20 cases). Litigants who alleged medical error were also more successful and received greater damages awards than plaintiffs who asserted surgical error. To that end, medical errors resulted in 17 settlements (23%), 14 plaintiff verdicts following a trial (19%), 40 defense verdicts following a trial (54%), one mistrial, and two arbitrations that resulted in compensation for the plaintiff (3%). The mean payout to the plaintiff for a case classified as a medical error was $960,048, with outcomes ranging from $0 to $12,500,000 for the plaintiff. Surgical judgment verdicts included two settlements (10%), six verdicts in the plaintiffs favor (30%), and 12 verdicts for the defendants (60%). The mean payout to the plaintiff for a surgical case was $579,098, with outcomes ranging from $0 to $3,495,760 for the plaintiff. Malpractice Allegations There were a variety of malpractice allegations that were lodged by patients. The leading complaint was failure to diagnose hearing loss (29%). Although not claimed as frequently as failure to diagnose or failure to treat, failure to refer to a specialist oftentimes, an otolaryngologist was a significant malpractice allegation (12%, 13 cases). Also, failure to get informed consent was an important complaint, which was alleged by the plaintiff in 9% of the cases examined (Fig. 3). Age of the Litigant In our cohort, there were 59 cases brought by adults (63%) and 35 cases brought by minors (37%). The average age of the plaintiff was 29 years old (4 months 70 years). For adult litigants, there were 36 defense verdicts, 19 plaintiff verdicts, three settlements, and one mistrial. Compensation for adult patient-plaintiffs ranged from $0 to $8,784,000, with eight cases that had a payout of $1 million or more; the average payout was $549,157. The cases involving large plaintiff verdicts for adult litigants were varied, but included a number of otolaryngology-related cases, including the removal of an acoustic neuroma, an ossiculoplasty, and a stapedectomy. Pediatric patient litigation resulted in 17 defense verdicts, nine plaintiff verdicts, and nine settlements. Compensation for pediatric litigants ranged from $0 to $12,500,000, with 14 cases having a payout of $1 million dollars or more; the average payout was $1,349,121. Unlike their adult counterparts, for pediatric plaintiffs, the cases involving large verdicts did not include otolaryngology-related cases but rather were concentrated more heavily in other trauma from meningitis or childbirth. Physician Defendants In 60 of the 94 cases evaluated, the specialty of the physician defendant was indentified (Table II). The most frequently sued medical practitioners were otolaryngologists (13 cases, 22%), followed by pediatricians (eight cases, 13%), nurses/physician assistants (seven cases, 12%), emergency room physicians (six cases, 10%), and family doctors (six cases, 10%). Of physician groups sued more than three times, emergency room physicians had the highest mean TABLE II. Frequency of Physicians Being Sued for Alleged Hearing Loss. Specialty Frequency Named as Defendant Average Indemnification Otolaryngologist 21.67% (13 cases) $313, Pediatrician 13.33% (8 cases) $1,087, Nurse/physician assistant 11.67% (7 cases) $1,975, Emergency room physician 10.00% (6 cases) $1,360, Family doctor 10.00% (6 cases) $75, Neuroradiologist/radiologist 6.67% (4 cases) $106, Pharmacist 6.67% (4 cases) $392, Internal medicine/internist 6.67% (4 cases) $100, Neurologist 5.00% (3 cases) $100, Anesthesiologist 3.33% (2 cases) $3,202, Infectious disease 3.33% (2 cases) $1,500, Obstetrician 3.33% (2 cases) $762, General surgeon 3.33% (2 cases) $694, Gastroenterologist 3.33% (2 cases) $125, Dentist 3.33% (2 cases) $0 Plastic surgeon 1.67% (1 case) $3,495, Neurosurgeon 1.67% (1 case) $3,000, Nephrologist 1.67% (1 case) $0 Ophthalmologist 1.67% (1 case) $0 Rheumatologist 1.67% (1 case) $0 114

4 TABLE III. Outcomes in Cases Where Otolaryngologist Was Sued as a Defendant. Type of Case Verdict/Settlement Acoustic neuroma $0 Acoustic neuroma $400,000 Cholesteatoma $0 Cholesteatoma $0 Ear flush $0 Ear infection $0 Ossiculoplasty $200,000 Ossiculoplasty $0 Removal of exotosis $0 Removal of facial mass $549,000 Stapedectomy $2,910,000 Transtympanic electrocochleogram $0 Tympanoplasty $0 liability at $1,360,291, followed by pediatricians with an average indemnification of $1,087,500. Although otolaryngologists are sued most frequently for hearing loss, they had an average payout of only $313,230. Otolaryngologist as Defendant There were 13 cases where an otolaryngologist was identified as the defendant. There were nine defense verdicts, three verdicts in plaintiffs favor, and one settlement. Only two of the 13 cases involved a minor patient, and both of those pediatric cases resulted in a verdict for the otolaryngologist. The first case involved the failure to treat a cholesteatoma, and the second was a failed ossiculoplasty. The following outcomes occurred in each of the 13 cases in which an otolaryngologist was named as a defendant (Table III). Otolaryngology-Related Medical Claims There were a number of ear-related cases included in the 94 malpractice lawsuits reviewed, including cases in which an otolaryngologist was not sued as the defendant. In particular, there were nine cases involving acoustic neuromas, 11 cases involving ear infections, four involving an ear flush, and three involving untreated cholesteatoma. The average indemnity for each of these procedures is listed in Table IV. Severity of Hearing Loss The degree of hearing loss was identified in 66 of the 94 cases analyzed (70%). A review of those 66 cases demonstrates that the severity of hearing loss correlates with a higher damages award for the plaintiff. There were 15 cases of complete hearing loss with an average indemnity payout of $1,490,000, as compared to 51 cases of partial hearing loss with an average payout of only $680, DISCUSSION Our study evaluated the relationship between allegations of hearing loss and malpractice litigation. In particular, the analysis examined how outcomes of hearing loss litigation differed depending on the age of the plaintiff, specialty of the defendant doctor, and etiology of hearing loss. A successful medical malpractice claim must satisfy a four-part test: 1) a duty existed between patient and practitioner, 2) the duty was breached, 3) the plaintiff was injured, and 4) the breach reasonably led to the injury. The test is conjunctive: each of the four factors must be satisfied before liability can be imposed. Furthermore, although a plaintiff s age may factor into the scope of damages (e.g., claim for economic injury from loss of income or potential future income), the test for negligence does not include an analysis of the plaintiff s age nor the degree of injury. Such factors only come into play once liability has been established and the amount of damages to be awarded to a plaintiff is to be determined. In our study, both age of the plaintiff and severity of hearing loss correlated strongly with the amount of damages awarded a plaintiff. In general, children who successfully sued for hearing loss often had more substantial payouts than their adult counterparts. Previous studies have argued that pediatric malpractice is low frequency, high severity. 4,9 That adage is supported by our study s findings and by additional research showing that younger patients had a higher success rate when suing for sinus surgery complications than did older patients (50% vs. 35%). 10 Similarly, the severity of hearing loss sustained correlated with higher payouts for the plaintiff and with a higher overall success rate (i.e., more findings in plaintiffs favor) in malpractice litigation. The severity of injury is not part of the negligence calculus, and severity does not necessarily equate to actual negligence during medical care. The link between the degree of hearing loss injury and the success of the plaintiff may be attributed to other subjective factors that arise in any Type of Case TABLE IV. Otologic Cases Involving Hearing Loss. Number of Cases Average Payout Acoustic neuroma 9 $483, Cholesteatoma 3 $0 Ear flush 4 $50, Ear infection 11 $3, Ear mold 1 $0 Foreign body 2 $0 Ossiculoplasty 3 $894, Removal of exotosis 1 $0 Removal of facial mass 1 $549, Stapedectomy 2 $1,455, Transtympanic electrocochleogram 1 $0 Tympanoplasty 1 $0 115

5 litigation setting. For example, juries may want to compensate an individual who is seen as truly being more injured. Clearly more severe hearing loss has a greater impact on quality of life. In addition, a hospital or physician may not want to undertake the risk of litigation in a case of total hearing loss, where the potential for damages might be more significant. Because patients with more severe hearing loss are more likely to succeed, settlement strategies may be considered. However, the largest payouts in malpractice litigation were cases in which hearing loss was not only severe, but also alleged as a secondary injury. Both meningitis (failure to diagnose or properly treat) and drug toxicity carry large settlements or verdict payouts. Although hearing loss can occur from improperly treated meningitis or drug toxicity, it is not the primary injury that results from medical error. Lawsuits that are brought specifically for hearing loss injuries arising out of otologic procedures, such as surgical treatment for otitis/mastoiditis, cholesteatoma, and foreign bodies, constituted 42% of the cases brought forth by adults and 29% of pediatric cases. The highest payout in our series was a failed stapedectomy ($2,910,000). This high payout underscores the importance of obtaining informed consent for a stapedectomy, which carries a 1% risk of total hearing loss. In our findings, the payouts for otologic injuries were not as significant as for other types of medical errors that cause hearing loss. Rather, the highest malpractice payouts are from hearing loss injuries resulting from childbirth (average indemnity, $3,436,333) and meningitis ($2,681,556). By way of contrast, there was little success in suing for alleged hearing loss secondary to otitis media/mastoiditis. There were 10 defense verdicts ($0) and one settlement for $42,500. Otolaryngologists did not have the highest overall liability, nor were otolaryngologists defendants in the cases with the highest payouts. The average indemnity of an otolaryngologist was $313,230. Moreover, the mean indemnity from hearing loss litigation is significantly lower than the average award against otolaryngologists for failed sinus surgery. For example, the mean payout for sinus surgery complications against an otolaryngologist was $751,275, as compared to $313,230 for hearing loss in our study. 7 Of physician groups sued more than three times, emergency room physicians had the highest mean liability at $1,360,291, followed by pediatricians $1,087,500. The larger payments for non-otolaryngologists likely reflect the severity of other injuries sustained by the plaintiffs, particularly because anesthesiologists and pediatricians were often sued for hypoxia involving birth trauma and failure to diagnose meningitis. Physician assistants/nurse practitioners were not sheltered from litigation and overall had the highest liability at $1,975, As to the type of negligence asserted, there were a variety of allegations of medical malpractice. The leading complaint was failure to diagnose hearing loss (29%), which stresses the importance of getting audiologic testing. The second leading allegation, failure to 116 treat, could be mitigated with referral to an audiologist. Failure to refer to a specialist oftentimes, an otolaryngologist was a significant malpractice allegation (11%). So too was failure to properly inform patients of the possibility of hearing loss as a complication when obtaining their consent for either a procedure or a medical treatment (9%). Health care providers who in any way prescribe treatments that may put the patient s hearing at risk should be prudent about obtaining pretreatment audiograms, particularly oncologists who prescribe ototoxic chemotherapeutic agents or radiotherapy. In our opinion, negligence allegations of both failure to refer and failure to get informed consent highlight the move in medical malpractice away from the operating table. Similarly, Mathew et al. found that a significant proportion of otologic malpractice claims were not related to surgery. 11 As a general matter, allegations that a physician failed to obtain informed consent could be avoided by judicious patient management and documentation of counseling on a procedure s risks. A malpractice claim based on failure to refer similarly could be avoided by strict adherence to medical guidelines about when to involve a specialist. Additionally, the larger number of medical error cases as contrasted with those brought for alleged surgical mistakes supports the notion that medical malpractice claims are not limited to what occurs inside an operating room. In our study, cases alleging medical judgment errors were three times more frequent than surgical judgment errors. In addition, the payouts for malpractice claims with medical causes of hearing loss were significantly higher than those for surgical events. Such a finding is also not surprising given the large variety of medical personnel that diagnose, treat, and manage hearing loss causes. There are limitations to this type of study. As jury verdicts are self-reported by attorneys to Westlaw, this analysis only looks at a small subset of malpractice cases involving hearing loss. For example, the study does not capture cases involving a confidential settlement. Nor does it include the large majority of cases that are dismissed well before trial (either on the pleadings or at summary judgment). Additionally, there are cases that were not self-reported by the attorneys involved in the litigation. Finally, Westlaw descriptors vary in their completeness, and some cases have few details regarding the severity of hearing loss, type of hearing loss, age of the plaintiff, or etiology of hearing loss. CONCLUSION Our study is the first in the literature to examine the medical legal implications of hearing loss. Similar to the findings by Jena et al., this study demonstrated that the majority of malpractice claims do not lead to indemnity payouts. 9 Otolaryngologists are successful in most (70%) hearing loss litigation brought against them. Also, although otolaryngologists were frequently sued, their indemnity was not as high as other medical professionals. In addition, although pediatric patientplaintiffs comprised a minority of the hearing loss

6 malpractice litigants, the payout for pediatric patients was significantly higher than for their adult counterparts. To that end, this study confirms the adage that pediatric malpractice is low frequency, high severity. 4 In part, this result occurred because so many pediatric cases dealt with significant neurological injury related either to childbirth or to meningitis. Finally, patients with more severe hearing loss are more likely to succeed, both in empirical terms of securing a verdict in their favor and also in the amount of that verdict. As a result, for those extreme cases, settlement strategies may be indicated. BIBLIOGRAPHY 1. Theunissen SC, Rieffe C, Kouwenberg M, et al. Depression in hearingimpaired children. Int J Pediatr Otorhinolaryngol 2011;10: Centers for Disease Control and Prevention. Hearing loss. Available at: Accessed February 3, Burke MJ, Shenton RC, Taylor MJ. The economics of screening infants at risk of hearing impairment: an international analysis. Int J Pediatr Otorhinolaryngol 2012;76: Ake JK. Malpractice claims rare for pediatricians but can be costly: pediatricians and the Law. AAP Newsletter 2010;31: Kane C. Policy Research Perspectives Medical Liability Claim Frequency: A Snapshot of Physicians. Chicago, IL: American Medical Association; 2010: Nash JJ, Nash AG, Leach ME. Medical malpractice and corticosteroid use. Otolaryngol Head Neck Surg 2011;144: Lynn-Macrae AG, Lynn-Macrae RA, Emani J, et al. Medicolegal analysis of injury during endoscopic sinus surgery. Laryngoscope 2004;114: Lydiatt DD. Medical malpractice and facial nerve paralysis. Arch Otolaryngol Head Neck Surg 2003;129: Jena AB, Seabury S, Lakdawalla D. Malpractice risk according to physician specialty. N Engl J Med 2011;365: Lydiatt DD, Sewell RK. Medical malpractice and sinonasal disease. Otolaryngol Head Neck Surg 2008;139: Mathew R, Asimacopoulos E, Valentine P. Toward safer practice in otology: a report on 15 years of clinical negligence claims. Laryngoscope 2011; 121:

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