Medical malpractice in pediatric surgery: an analysis of Supreme Court decisions involving physicians

Abstract

BACKGROUND:

In pediatric surgical practice, physicians may face malpractice claims leading to substantial compensations and even criminal liability.

OBJECTIVES:

To examine the legal processes and responsibilities of physicians by reviewing Supreme Court decisions related to malpractice claims involving pediatric surgeons.

DESIGN AND SETTINGS:

A retrospective study based on the online archive of Supreme Court decisions.

PATIENTS AND METHODS:

A search was conducted using keywords from the Supreme Court decision search engine. Decisions were reached regarding malpractice claims involving pediatric surgery.

MAIN OUTCOMES MEASURES:

The medical procedure that was the subject of the malpractice claim, the resulting damage, the expertise of the physicians, and the reasons for the Supreme Court's reversal and approval were evaluated.

SAMPLE SIZE:

82 Supreme Court decisions

RESULTS:

Among 82 decisions, circumcision (46%; n=38) was the most common. Appendicitis and testicular torsion followed. Total/subtotal penile amputation was present in 40% (n=15) of circumcisions. Half of the appendicitis cases resulted in death, and all testicular torsion cases resulted in organ loss. General surgeons were the most frequent physicians involved in litigation, accounting for 16% of cases (n=13), followed by pediatric surgeons and general practitioners, each accounting for 15% of cases (n=12). Supreme Courts found physicians at fault in 35% of criminal cases and 38% of civil cases. Deficiencies in expert reports were the reason for reversals in 42% of the decisions.

CONCLUSION:

Supreme Courts conduct comprehensive evaluations in malpractice cases, considering factors such as indication, authority, fault status, complication management, and causal link. Physicians' understanding of these issues will significantly contribute to minimizing malpractice claims.

LIMITATIONS:

Retrospective study

INTRODUCTION

Medical interventions, especially surgical procedures, violate the inviolability of the body. Nonetheless, such interventions are deemed lawful only when three essential conditions are satisfied. First, the patient must have given informed consent. Second, the person performing the intervention must be authorised in this regard. Third, the intervention must be necessary and appropriate according to the data of medical science. Absence of one or more of these elements may result in legal liability. Medical malpractice is governed by a specific set of legal principles. The primary objective of these provisions is to provide compensation for the damages sustained by the patient and to deter the negligent behaviour by healthcare professionals that may result in medical malpractice.¹

Various legal systems are in use in different geographical locations around the world. The Turkish justice system, which is within the continental European legal system, consists of main divisions such as the judicial and administrative judiciaries. These divisions are further divided into subdivisions, which significantly differentiates it from the common law system used in many other countries. The general outline of our system is shown in Figure 1.²

Figure 1.

Schematic diagram of the Turkish judicial system.

A physician facing an allegation of medical malpractice in this context may be subject to distinct proceedings under each of the three types of liability. For example, on the one hand, a criminal court may sentence the physician to imprisonment for the offense of “causing injury by negligence,” on the grounds that the wrong surgery was performed on a patient. This prison sentence may be converted to a fine or suspended. On the other hand, a civil court may order the physician to pay compensation for the damage caused to the patient. Moreover, if the physician is a public servant, they may be subject to administrative disciplinary action by the public institution that employs them.

Surgeons, by the very nature of their work, are involved in high-risk medical practices, which places them at greater risk of malpractice claims.^3,4 However, data on malpractice claims involving pediatric surgeons remain limited. Pediatric surgeons may face litigations due to the vulnerability of their patient population, the complexity of the diseases they treat, and the highly delicate nature of surgical and treatment procedures.⁵ In addition, the amount of compensation claimed in pediatric malpractice cases is higher than in adult cases due to the child's lifelong care costs, potential future loss of income, and substantial moral damages.^6,7 The aim of our study is to discuss the legal assessment methods and results of medical malpractice claims related to pediatric surgery by reviewing Supreme Court decisions and to inform the surgeons about litigation processes and legal responsibilities.

MATERIALS AND METHODS

This study was conducted in accordance with the tenets of the Declaration of Helsinki, with approval from the Pamukkale University Non-Interventional Clinical Research Ethics Committee, dated March 19, 2025, and numbered E-60116787-020-671329.

Search for court rulings via the search engine ‘https://legalbank.net/arama/mahkeme-kararlari’ using the keywords ‘paediatric surgery’, ‘child surgery’, ‘circumcision’, ‘child appendicitis’, ‘atresia’, “congenital diaphragmatic hernia”, “necrotising enterocolitis”, “malrotation”, “anorectal malformation”, “Hirschsprung's disease”, “teratoma”, “lymphangioma”, “paediatric cyst”, ‘torticollis’, ‘umbilical hernia’, ‘pyloric stenosis’, ‘Meckel's diverticulum’, ‘intussusception’, ‘hypospadias’, ‘vesicoureteral reflux’, “ureterocele”, ‘inguinal hernia’, ‘hydrocele’, ‘undescended testis’, ‘testicular torsion’, ‘scrotal trauma’, ‘pilonidal sinus’, ‘perianal abscess’, ‘paediatric laparoscopy’, ‘paediatric burns’. No time restriction was applied during the search. The search yielded 2657 results. 2531 results were excluded because they were not related to malpractice cases, and 44 results were excluded due to duplication. A total of 82 court decisions were included in the study. The oldest judgment dates from 1998 and the most recent dates from 2024.

We evaluated the Supreme Court judgments, the local court judgments included in these judgments, and the Supreme Court's grounds for reversal and affirmation. Statistical analyses were performed using SPSS (Statistical Package for the Social Sciences) version 21.0. Categorical variables were expressed as numbers and percentages and analyzed using the Chi-square test.

RESULTS

Of the 82 decisions related to pediatric surgery, 49% (n=40) were criminal cases and 51% (n=42) were civil cases. 93% (n=76) and 7% (n=6) of the Supreme Court decisions were rendered by the Court of Cassation and the Council of State, respectively. There were eight decisions until 2010, 24 between 2011 and 2015, 37 between 2016 and 2020, and 13 after 2021.

Of the medical diagnoses that were the subject of malpractice claims filed with the Supreme Court, circumcision was the most common (46%; n=38). Appendicitis and testicular torsion followed (Table 1). Mortality was the most common type of harm reflected in malpractice claims (26%; n=21). Notably, death occurred in all cases related to intussusception, trauma, and anesthesia complications. The surgical procedures subject to litigation and mortality rates are summarized in Table 1. In 16 cases, the subject of the lawsuit is penile amputation. A total of 15 amputations (40% of circumcision cases) are related to circumcision. In one patient with penile amputation, the surgical procedure was not specified. Loss of the organ occurred in all cases of testicular torsion. Court records showed that a thyroidectomy was performed during surgery on a patient who was operated on for a cervical cystic mass. Another patient who performed hydrocelectomy was found to have undergone orchiectomy due to testicular torsion on the fifth postoperative day.

Table 1.

Mortality according to surgical procedures.

	Death n (%)ab	Total n (%)b
Circumcision	2 (10/2)	38 (46)
Appendicitis	3 (14/4)	6 (7)
Trauma	4 (19/5)	4 (5)
Inguinal hernia	1 (5/1)	4 (5)
Biliary atresia	1 (5/1)	3 (4)
Anesthesia complication	3 (14/4)	3 (4)
Intussusception	2 (10/2)	2 (2)
Aspiration of foreign body	1 (5/1)	2 (2)
Peptic ulcer	1 (5/1)	1 (1)
Malrotation	1 (5/1)	1 (1)
Necrotising enterocolitis	1 (5/1)	1 (1)
Omphalocele	1 (5/1)	1 (1)
No mortalityc	-	16 (20)
Total	21 (100/26)	82 (100.0)

^aIndicates the rate within the death cases;

^bIndicates the rates within the total number of cases (n=82);

^cTesticular torsion (7), hydatid cyst (1), undescended testicle (1), ureteral surgery (1), mass in the neck (1), hydrocele (1), epidermoid cyst (1), ovarian torsion (1), no information (2).

Out of 38 circumcision cases, a total of eight required revision. Ten circumcision cases (26%) were subject to legal action due to other complications. Lawsuit reasons included three bleeding, two cautery burns, two infections, one urethral fistula, one cosmetic issue, and one injection neuropathy. Of six appendicitis law-suits, one involved infection, two delayed diagnosis, and three resulted in death. Three biliary atresia cases were subject to litigation: two due to delayed diagnosis—one of which required liver transplantation—and one due to patient death. Foreign body aspiration led to litigation due to one case of hypoxic injury and one death. In one case where the pediatric surgeon was sued for delayed diagnosis. However, in this litigation the specific diagnosis could not be determined. One patient who underwent ureteral surgery filed a lawsuit due to the development of a ureteral obstruction. A patient with a sacral epidermoid cyst sued for delayed diagnosis. The complications of common cases are presented in Table 2.

Table 2.

Complications of common pediatric surgical procedures.

	Circumcision n (%)	Testicular torsion n (%)	Appendicitis n (%)	Inguinal hernia n (%)
Lost of organ	15 (40)	7 (100)	-	-
Revision / Recurrent surgery	8 (21)	-	-	3 (75)
Infection	2 (5)	-	1 (17)	-
Bleeding	3 (8)	-	-	-
Cautery burn	2 (5)	-	-	-
Injection neuropathy	1 (3)	-	-	-
Perforation	-	-	2 (33)	-
Urethral fistula	1 (3)	-	-	-
Cosmetic complications	1 (3)	-	-	-
Death	2 (5)	-	3 (50)	1 (25)
No information	3 (8)	-	-	-
Total complications	38 (100)	7 (100)	6 (100)	4 (100)

Column percentages are provided.

Technical errors were the most common cause of medical malpractice lawsuits. 55% (n=45) of defendants continued to face malpractice lawsuits due to technical errors, 37% (n=33) due to delays in diagnosis or medical intervention, and 13% (n=12) due to deficiencies in postoperative care and follow-up. Among the main causes of malpractice claims, technical errors were more frequent in circumcision cases, whereas delays in diagnosis were more common in cases of testicular torsion, appendicitis, and trauma (P<.05) (Table 3).

Table 3.

Medical malpractice claims against physicians by specialty, causes of malpractice claims, and the distribution of Supreme Court decisions.

	Causes of malpractice claims			Supreme court decisions			Total n (%)
	Diagnostic delay n (%)	Technical errors n (%)	Postoperative deficiencies n (%)	No physician faulta n (%)	Physician faultb n (%)	Reassesmentc n (%)
General surgeon	2 (15)	9 (69)	2 (15)	4 (31)*	5 (38)	4 (31)	13 (16)
Pediatric surgeon	4 (33)	5 (42)	3 (25)	1 (8)	-	11 (92)*	12 (15)
Practitioner	11 (92)*	-	1 (8)	2 (17)	4 (33)	6 (50)	12 (15)
Pediatrician	7 (100)*	-	-	-	1 (14)	6 (86)	7 (8)
Health Officer	-	6 (100)	-	-	6 (100)*	-	6 (7)
Other	9 (22)	25 (62)*	6 (15)	2 (5)	14 (35)	24 (60)	40 (39)
Anesthesiologist	-	-	3 (100)	-	-	3 (100)	3 (4)
Governance	2 (100)	-	-	-	1 (50)	1 (50)	2 (2)
Unauthorised person	-	2 (100)	-	-	2 (100)	-	2 (2)
Urologist	-	2 (100)	-	-	2 (100)	-	2 (2)
Internal medicine	1 (100)	-	-	-	-	1 (100)	1 (2)
No information	6 (20)	21 (70)	3 (10)	2 (7)	9 (30)	19 (63)	30 (37)
Total	33 (37)	45 (50)	12 (13)	9 (10)	30 (33)	51 (57)	90 (100)

Note: Some cases have more than one defendant.

^aThe group in which physicians are deemed justified consists of Supreme Court decisions involving acquittals and the denial of compensation claims.

^bThe group in which physicians are deemed at fault consists of Supreme Court decisions involving convictions and the awarding of compensation.

^cThe reassessment group consists of decisions in which local courts are required to re-evaluate the case and obtain a new expert report due to deficiencies in the expert opinion.

^*P<.05

General surgeons were the most frequent physicians involved in litigation, accounting for 16% of cases (n=13), followed by pediatric surgeons and general practitioners, each accounting for 15% of cases (n=12). Practitioners (92%) and pediatricians (100%) were sued more frequently due to delays in diagnosis and treatment (P<.05). General surgeons were deemed justified in 31% of cases by the supreme court, whereas health officers were found at fault in all cases (P<.05) (Table 3). Malpractice claims were made against pediatric surgeons in cases involving three inguinal hernias, three anesthesia complications, two trauma, one undescended testicle, one circumcision, and one ureteral surgery. In one decision, no diagnostic information was identified. Of the surgical procedures subject to decisions, 29% (n=24) were carried out in public hospitals, 26% (n=21) in private hospitals or clinics, and 8% (n=7) in university hospitals. In 28% (n=23) of cases, the location of the procedure could not be identified. Six (16%) of the 38 circumcision were performed during mass circumcision ceremonies, and one at home.

In 40 criminal cases, 58% (n=23) of the local court decisions were acquittals and 42% (n=17) were convictions. The Supreme Court overturned 78% (n=18) of the acquittals issued by the local courts. It confirmed 59% (n=10) of the convictions. The Supreme Court overturned 14 (35%) of the decisions of the local courts due to shortcomings in the forensic report (Table 4).

Table 4.

Decisions of local courts and Supreme Courts in criminal cases.

	Supreme Court Decisions		New forensic report	Reassessment	Total
	Acquittal	Conviction
Local criminal court decisions (%)
Acquittal	5 (22)	4 (17)	10 (44)	4 (17)	23
Conviction	3 (18)	10 (59)	4 (24)	-	17
Total	8 (20)	14 (35)	14 (35)	4 (10)	40
Local civil court decisions (%)
Acceptancea	13 (65)	-	3 (15)	4 (20)	20
Dismissalb	3 (14)	1 (5)	17 (81)	-	21
Procedural dismissalc	-	-	-	1 (100)	1
Total	16 (38)	1 (2)	20 (48)	5 (12)	42

^aJudgment ordering the defendant to pay compensation;

^bDecision on non-payment of compensation by the defendant;

^cThe local court dismissed the case without going into the merits.

In 42 civil litigations, the local courts decided that the defendant should pay compensation in 48% (n=20) of the cases, that the defendant should not pay compensation in 50% (n=21) of the cases, and that one case was dismissed for procedural reasons. The Supreme Court ruled on compensation payments in 65% of the cases (n=13). Compensation amounts were only found in five cases, ranging from $49 175 to $250 000. Eighty-one % of the decisions to dismiss the case were overturned by the Supreme Court due to deficiencies in expert reports (Table 4). The Supreme Court cited the need for a new expert opinion in 41.4% (n=34) of its decisions.

DISCUSSION

Surgeons are the physicians most frequently subjected to medical malpractice litigations. Nevertheless, the number of medical malpractice litigations against pediatric surgeons is comparatively lower than the number against surgeons such as general surgeons and gynecologists, who encounter these litigations much more often. Thyoka⁸ reported that 0.2% of the cases involving malpractice claims between 2004 and 2012 were related to pediatric surgery in England. Mahler et al⁸ reported that pediatric surgeons are also at high risk in terms of forensic medical liability when evaluating malpractice cases per physician. In Germany, it has been reported that over a pediatric surgeon's 40-year career, the average risk of being charged with malpractice litigation is 2.1 times (once every 19 years) and the average risk of being convicted is 0.9 times (once every 44 years).⁹ A study in Turkey revealed that 37.3% of pediatric surgeons admitted to having made at least one medical error that jeopardised patient safety during their careers.¹⁰ Rich et al⁶ reported that 26.4% of pediatric surgeons had been involved in litigation related to their field. Our study found that pediatric surgeons were defendants in 20% of malpractice cases related to pediatric surgical conditions in which the sued physician was identified. The limited data from the Supreme Court decisions and the fact that not all cases in our country are reflected in the higher judiciary make it difficult to evaluate how often pediatric surgeons are subject to legal action.

Circumcision, which is often subject to allegations of malpractice, has varying prevalence between countries due to religious and cultural factors.¹¹ Malpractice claims related to circumcision ranked second after appendicitis in the report of Rich et al,⁶ and after trauma cases in the report of Mahler et al.⁹ Our study found that circumcision was the most common reason for malpractice claims involving pediatric surgical cases, with a rate of 46% (n=38). This result is not surprising in our country, where the majority of people are Muslim and nearly all boys are circumcised for religious or cultural reasons. The most common complications of circumcision in children include pain, bleeding, swelling, inadequate skin removal, glans penis amputation and even death.¹² The main causes for malpractice suits related to circumcision were reported to be aesthetic dissatisfaction, pain, sexual dysfunction, and surgical trauma.¹² The most common causes of litigation in the present study were noted to be glans penis amputation, bleeding, and incorrect cautery use. Another notable finding in our study is that 16% of the circumcisions subject to malpractice litigation were performed during mass circumcision. Total or subtotal penile amputation occurred in 83% of the cases, and the Supreme Court awarded compensation in half of these cases. The remaining cases focused on issues such as uncertainty surrounding the identity of the circumciser, the statute of limitations, and the distinction between complications and malpractice. A previous report stated that 10% of circumcisions in our country were performed during mass circumcisions.¹⁴ Reports have indicated an increased risk of malpractice in mass circumcisions.^14–16 Physicians who participate in mass circumcision organizations may face serious complications and inevitable malpractice litigation.

Appendicitis, one of the most common diagnoses related to pediatric surgery, is often the subject of malpractice claims.^5,6,17 Typical clinical findings of appendicitis are present in approximately 50% of pediatric cases. This situation may lead to misdiagnosis and delays in treatment, resulting in serious complications such as perforation, sepsis, and even death.¹⁷ In our study, six cases (7%) of appendicitis were identified, half of which resulted in fatal outcomes. The local courts found the physician at fault in only one case, and awarded compensation. They ruled in the physician's favor in the other five cases. However, the Supreme Court upheld only one of these decisions in favor of the physician and overturned the rest due to deficiencies in the expert reports. The Supreme Court emphasized that expert reports must detail the physicians' faults in order to establish a link between the patients' damages and the physicians' malpractice.

Testicular torsion, if not diagnosed timely, may result in orchiectomy and be subject to malpractice litigation. Blasco et al¹⁸ reported that testicular loss was present in all 80 cases of testicular torsion litigated and that malpractice claims were attributed to delays in diagnosis. Furthermore, Matteson et al¹⁹ noted that physicians paid compensation in 67% of malpractice cases involving testicular torsion. In our study, testicular torsion was the second most common diagnosis in malpractice lawsuits. Consistent with previous reports, all seven cases of testicular torsion resulted in orchiectomy, and delays in diagnosis led to malpractice claims. The Supreme Court delivered a conviction in four cases (57%), while an acquittal was issued in one case on the grounds that the patient presented after eight hours and the physician's intervention would not have altered the outcome. The remaining two judgments stated that a new expert report should be obtained. Physicians who fail to recognize promptly and intervene in testicular torsion are deemed to have breached their duty of care and acted negligently, according to the courts.

Delays in diagnosis or medical intervention were reported to be the most common cause of malpractice claims involving pediatric surgery (41-45%). Technical errors (17-35%) and deficiencies/complications in postoperative management (11-28%) follow.^6,8 In our study, technical errors were the most common cause of malpractice claims at 54.9%, while delays in diagnosis or medical intervention ranked second at 35.4%. The most important reason for this difference is the frequency of circumcision cases in which technical errors are at the forefront. When circumcision cases are excluded, delays in diagnosis or medical intervention are seen to be the most common reasons for malpractice claims, with a similarly high rate of 64.3% in our study. Studies have reported the mortality rate in malpractice cases as 23-26.5%.^6,8 Similarly, the mortality rate in our study was 25.6%. Trauma, anesthesia complications, and appendicitis were the most common clinical conditions involved in malpractice claims resulting in death. In these cases, delays in diagnosis and treatment and procedural errors were the primary factors directly contributing to death.

In our study, Supreme Courts found the physicians at fault in 36% of the cases and ruled for conviction or compensation payment. Similar to our study, Rich et al⁶ reported that the rate of lawsuits ruled against physicians in the USA was 35%. However, Thyoka et al⁷ found that 65% of pediatric surgery lawsuits in the UK resulted in compensation payments. This difference may be due to the fact that malpractice cases in the UK are resolved through financial settlements when appropriate.

Similar to previous studies conducted in Turkey that examined higher court decisions regarding malpractice claims, our study found that 76% of local court decisions were reversed by higher courts.^15,16 Deficiencies in expert reports are the most common reason for reversal. In a malpractice case, the expert report must be sufficiently explanatory, comprehensible, complete, in accordance with scientific data and reality, and justified.²⁰ Expert reports must clearly and unequivocally state the indication for medical intervention, the competence of the practitioner, the management of the complication, the causal link between the damage and the intervention, and whether the physician was at fault. If there is more than one defendant, the report must also state the proportion of fault for each defendant. These points, which are a summary of the principles and methods for evaluating malpractice claims by high courts of justice, are important for experts who are expected to prepare accurate and proper expert reports, as well as for physicians who may face malpractice claims.

As a result, the most prevalent malpractice case in Turkey involving pediatric surgical conditions is that of circumcision. Testicular torsion and appendicitis are two medical conditions that often lead to malpractice claims. The mortality rate was 26%, with trauma, anesthesia complications, and appendicitis being the most common malpractice claims resulting in death. Delays in diagnosis or medical intervention, technical errors, and deficiencies in postoperative management were identified as the most significant causes of malpractice claims. The Supreme Court found the physicians to be at fault in 35% of the criminal cases and in 38% of the civil cases, resulting in convictions and compensation, respectively. Almost half of the local court judgments were overturned due to deficiencies in the expert reports. Supreme Courts conduct comprehensive evaluations in malpractice cases, considering factors such as indication, authority, fault status, complication management, and causal link. A comprehensive understanding of the scope and underlying causes of malpractice litigation is likely to assist physicians in mitigating medicolegal risk. Moreover, judgments rendered by Supreme Courts provide critical insight into the legal challenges physicians may encounter, thereby offering a valuable framework for anticipating and managing potential medico-legal disputes.

LIMITATIONS

Although the Supreme Court publishes its decisions, it anonymizes much of the data, including physician specialties and healthcare institutions, and releases it in summary form. Therefore, our study is limited by deficiencies in the data and the fact that some summaries include only limited information. Additionally, the lack of access to local court decisions limits our ability to evaluate the frequency of malpractice litigations. Also, since the oversight bodies responsible for supervising physicians do not have a direct reporting relationship with the Supreme Courts and the publicly available summaries contain limited information, no data related to institutional assessments were found. Nevertheless, our study is valuable because it includes the broadest range of diagnosis and practices among the few studies on malpractice cases related to pediatric surgical conditions in our country.

Funding Statement

None.