Medical Malpractice in Nerve Injury of the Upper Extremity

Abstract

Background: Medical malpractice accounts for more than $55 billion of annual health care costs. Updated malpractice risk to surgeons and physicians related to upper extremity peripheral nerve injury has not been published. Methods: A comprehensive database analysis of upper extremity nerve injury claims between 1995 and 2014 in the United States was conducted using the Medical Professional Liability Association Data Sharing Project, representing 24 major insurance companies. Results: Nerve injury in the upper extremity accounted for 614 (0.3%) malpractice claims (total of 188 323). Common presenting diagnoses included carpal tunnel syndrome (41%), upper extremity fractures (19%), and traumatic nerve injuries to the shoulder or upper limb (8%). Improper performance (49% of total claims) and claims without evidence of medical error (19%) were the most common malpractice suits. Orthopedic surgeons were the most frequently targeted specialists (42%). In all, 65% of nerve injury claims originated from operative procedures in a hospital, 59% of claims were dismissed or withdrawn prior to trial, and 30% resulted in settlements. Thirty-three percent of claims resulted in an indemnity payment to an injured party, with an average payout of $203 592 per successful suit. Only 8% of claims resulted in a completed trial and verdict, and verdicts were overwhelmingly in favor of the defendant (83%). Conclusions: Most malpractice claims from peripheral nerve injuries in the United States arise from the management of common diagnoses, occur in the operating room, and allege improper performance. Strategies to reduce malpractice risk should emphasize the management of common conditions and patient-physician communication.

Introduction

Medical malpractice is a highly contentious issue in the United States, with significant downstream effects on the cost, quality, and accessibility of health care. ¹ The malpractice framework is intended to provide compensation and justice for negligently injured parties. ² It is contended that it deters substandard care; however, by encouraging defensive medicine practices, litigation harms the patient-physician relationship and contributes to the misallocation of health care resources. ³ Each year 7.4% of all physicians face a malpractice claim, whereas 1.6% pay an indemnity payment to an injured party. In high-risk professions such as surgery, nearly 99% of practitioners will face a lawsuit prior to the age of 65, accounting for more than $55 billion to annual health care costs.^4,5

There is little information in the literature on litigation associated with nerve injury in the upper extremity.^6-8 This study describes patterns of malpractice involving peripheral nerve injury in the upper extremity and characterizes monetary and professional risk in the field.

Methods

A comprehensive analysis of nerve injury claims was conducted on data obtained from 24 malpractice insurance companies across the United States using the Medical Professional Liability Association (MPL), previously known as the Physician Insurers Association of America, Data Sharing Project (DSP). International Classification of Diseases, Ninth Revision (ICD-9-CM) codes specific to upper extremity nerve injury were used to select malpractice claims (Table 1).

Table 1.

ICD-9-CM Codes of Upper Extremity Nerve Injury.

ICD-9 code	Diagnosis
354.0	Carpal tunnel syndrome
354.2	Cubital tunnel syndrome
955.1	Injury to median nerve in upper limb
955.2	Injury to ulnar nerve in upper limb
955.3	Injury to radial nerve in upper limb
955.4	Injury to musculocutaneous nerve in upper limb
955.5	Injury to cutaneous sensory nerve in upper limb
955.6	Injury to digital nerve in upper limb
955.7	Injury to other specified nerve in upper limb
955.8	Injury to multiple nerves in upper limb
955.9	Injury to other unspecified nerve in upper limb

Note. ICD-9-CM = International Classification of Diseases, Ninth Revision, Clinical Modification.

The member companies of the MPL insure more than two-thirds of America’s private practice physicians and may not reflect the risk profile of surgeons in other practice settings. Information on each lawsuit is de-identified to protect confidentiality and is provided under the DSP in aggregate form only. Individual-level data, patient medical records, and legal reports were unavailable due to privacy laws. A true incidence of malpractice suits based on surgeon or hospital case volume was not able to be obtained. In addition, access to state-specific data and type of institution (academic vs other) was not obtainable due to the risk of inadvertent case identification.

Data regarding closed claims, paid claims, case resolution, and indemnity were obtained. Results were analyzed by presenting diagnosis, misadventure, procedure, physician specialty, and location of incident. The paid-to-closed (P:C) ratio was used to determine the likelihood that a specific type of claim resulted in an indemnity payment (Table 2).

Table 2.

Legal Definitions for Understanding Malpractice Statistics.

Term	Definition
Plaintiff	The party who initiates a lawsuit
Misadventure	Any adverse incident or unintended therapeutic error related to imaging, diagnosis, monitoring, treatment, or other cause despite good and reasonable effort by the physician. An accident that causes injury but does not involve negligence or intention to do harm
Closed claim	Any lawsuit that has been dismissed, dropped, withdrawn, settled out of court, or given a verdict
Paid claim	Any lawsuit that results in damages paid to the plaintiff
Disposition	Legal decision or outcome of a lawsuit
Indemnity	A contractual obligation of one party to compensate the loss occurred to the other party or the amount paid in compensation to the injured party
Paid to closed ratio	The ratio of the number of claims (lawsuits) resulting in a payment to the plaintiff to the total number of lawsuits closed (includes those lawsuits dropped, withdrawn, settled, or given a verdict) for a particular condition or misadventure

Results

The MPL database contained a total of 188 323 closed claims between 1995 and 2014, of which 614 (0.3%) were associated with nerve injuries to the upper extremity. Nerve injury claims were filed more often by men than by women (53% vs 43%, 4% not specified). The median age of the plaintiff was 47 years. Of all upper extremity nerve injury claims filed against a physician, 33% resulted in an indemnity payment, higher than the average rate across all medical specialties. Mean indemnity for a successful nerve injury claim was $203 592, lower than the average payout of $291 374 across all specialties. Total indemnity from nerve injury claims amounted to $41 million. The largest individual payout was $2.75 million.

Disposition

Most (59%) malpractice suits were dropped, withdrawn, or dismissed prior to court; only 8% (52 claims) of malpractice suits proceeded to trial and reached verdict. Rulings were in favor of the defendant in 83% of trials, with the remaining 17% in favor of the plaintiff. Overall, 30% of lawsuits were settled out of court, accounting for 93% of total indemnity. Verdicts in favor of the plaintiff resulted in a higher average indemnity than cases settled out of court ($242 588 vs $205 328) (Supplemental Figure 1).

Presenting Diagnoses

The most frequent presenting medical condition of the patients filing malpractice suits was carpal tunnel syndrome (CTS) (41% of claims), followed by traumatic nerve injuries to the shoulder or upper limb (8%), atherosclerosis (8%), humerus fractures (7%), and mononeuritis (7%). The average indemnity for CTS was $177 912 per case, and the total indemnity was $9.4 million. Fractures of the upper extremity comprised 19% of all claims, with radius or ulna fractures accounting for the largest average indemnity ($667 000) (Table 3). Care of ganglions or cysts had the highest P:C ratio, resulting in payment 67% of the time (P:C), with a mean indemnity of $380 123. Claims originating from humerus fractures (50% P:C) and CTS (47% P:C) frequently resulted in indemnity payments. Surgeons were unlikely to pay damages in cases with primary diagnoses of atherosclerosis (0% P:C), osteoarthritis (12.5% P:C), or mononeuritis (15% P:C) (Table 2).

Table 3.

Average Indemnity for Nerve Injury Claims by Diagnosis.

Presenting diagnosis	Average indemnity per paid claim ($)	Total indemnity ($)
Radius/ulna fracture	667 000	3 335 000
Ganglion or cyst	380 123	3 040 981
Mononeuritis	241 667	725 000
Osteoarthritis	240 000	480 000
Humerus fracture	211 825	2 118 249
Upper limb nerve injury	181 872	1 454 978
Carpal tunnel syndrome	177 912	9 429 349
Nonarthritic joint disorder	86 417	518 500
Carpal bone fracture	71 115	355 575
Atherosclerosis	—	—

Procedures

Most nerve injury claims originated from procedures on cranial and peripheral nerves (32% of claims) or joint structures (14%) (Table 4). These procedures resulted in a liability indemnity payment more than 45% of the time and together accounted for $18 million of total indemnity. Nerve injuries that incurred during surgeries on joint structures accounted for the highest average indemnity among all procedures ($274 584). General anesthesia was a common driver of litigation (13% of all claims); however, it rarely resulted in an indemnity payment (13.7% P:C). Errors in the diagnostic interview or evaluation were frequently targeted in lawsuits but were generally unsuccessful for the plaintiff (10.6% P:C) (Table 4).

Table 4.

Nerve Injury Claims by Procedure.

Procedure	Closed	Paid	% Paid-to-closed	Total indemnity ($)	Average indemnity ($)
Surgery: cranial and peripheral nerves	129	63	48.8	11 682 308	185 433
Surgery: joint structures, exclusive of spinal fusion	55	25	45.5	6 864 600	274 584
General anesthesia	51	7	13.7	756 500	108 071
Diagnostic interview, evaluation, or consultation	47	5	10.6	444 483	88 897
Surgery: skin, excluding skin grafts	30	10	33.3	1 861 677	186 168
Surgery: muscle, tendon, and fascia of hand	28	18	64.3	3 715 000	206 389
Surgery: blood vessels, excluding heart	21	5	23.8	360 000	72 000
Open reduction of dislocation, excluding facial bones	16	11	68.8	2 452 249	222 932
Surgery: muscle, tendon, fascia, and bursa, excluding hand	15	4	26.7	1 03 500	258 125
No care rendered	15	0	0	—	—

Misadventures

Allegations of improper performance were the leading cause of litigation (49% of claims). Nearly half of these claims resulted in a payment, with an average indemnity of $217 708 per case (Table 5). Improper performance resulted in more than $30 million for damages—nearly 76% of the total indemnity paid. These claims had a higher P:C ratio, indicating they were difficult to defend for the surgeon (48% P:C). Improper performance resulted in the highest average indemnity among all misadventures ($217 708).

Table 5.

Average Indemnity for Nerve Injury Claims by Misadventure.

Misadventure	Average indemnity per paid claim ($)	Total indemnity ($)
Failure to recognize a complication of treatment	392 117	3 529 052
Improper performance	217 708	30 043 766
No medical misadventure	185 000	1 295 000
Not performed	177 538	355 075
Errors in diagnosis	139 194	1 670 333
Failure to supervise or monitor case	127 725	510 900
Patient positioning problem	123 250	1 232 500
Wrong patient or body part	117 786	824 500
Problems with patient monitoring in surgery	—	—
Improper supervision of residents/other staff	—	—

Other misadventures included patient positioning (19% of claims), errors in diagnosis (8%), and failure to recognize a known complication of treatment (4%). Failure to recognize a complication of treatment frequently resulted in a successful lawsuit (43% P:C) with a high average indemnity ($392 117). Although issues of medical battery, such as operating on an incorrect body part, were not common (1.1%), these claims were uniformly successful for the plaintiff (100% P:C) (Table 5).

Claims without evidence of a medical misadventure were the second most common trigger of litigation (19% of claims). Only 6.4% of these claims resulted in an indemnity payment, with an average indemnity of $185 000 per case.

Specialties and Location of Misadventure

Orthopedic surgeons were the most frequently targeted specialists (42% of claims), followed by anesthesiologists (15%), general surgeons (11%), and plastic surgeons (8%) (Table 6). Orthopedic surgeons were responsible for 70% of nerve-related indemnity and had the highest total ($26.1 million) and average indemnity ($253 841) compared with general surgeons ($4.7 million) and plastic surgeons ($3.8 million). Lawsuits against surgeons were frequently successful for the plaintiff, with P:C ratios above 40%. Most of the claims originated from hospital settings (64%) (Supplemental Figure 2). Total indemnity was highest in hospital-based care, driven by a greater volume of claims, but a P:C ratio of 31.8%. Claims from a practitioner’s office resulted in payouts well below the average ($117 701).

Table 6.

Nerve Injury Claims by Specialty.

Specialty	Closed	Paid	% Paid-to-closed	Total indemnity ($)	Average indemnity ($)
Orthopedic surgery	233	103	44.2	26 145 669	253 841
Anesthesiology	83	11	13.3	936 500	85 136
General surgery	62	25	40.3	4 666 017	186 641
Plastic surgery	47	21	44.7	3 802 000	181 048
Internal medicine	34	4	11.8	59, 333	14 833
General and family practice	25	6	24.0	227 250	37 875
Cardiovascular and thoracic surgery	25	4	16.0	620 500	155 125
Emergency medicine	21	2	9.5	310 000	155 000
Urologic surgery	12	1	8.3	—	—
Other nonsurgical specialties	11	2	18.2	320 000	160 000

Discussion

Our results support existing malpractice literature on hand and upper extremity surgery.^7,9,10 Carpal tunnel syndrome is a well-established trigger of litigation, as is nerve injury in the setting of fractures of the upper extremity.^6,7 Only 8% of claims went to trial, which were overwhelmingly in favor of the defendant (83%). The frequency of orthopedic surgeons targeted in lawsuits for nerve injury reflects the scope of orthopedic practice of extremity surgeons, as well as current practitioner ratios in the United States; there are 5 times the number of orthopedic surgeons than plastic surgeons. ¹¹ Claims for procedures performed in practitioner’s offices had lower payouts than those in hospital-based care, perhaps related to the low-risk procedures typically performed in an office setting. The largest individual payout for nerve injury in upper extremity surgery was $2.75 million, lower than the largest reported payout in the United States of $13 million in obstetrics and gynecology. ²

Frivolous Lawsuits

Truly negligent errors in medicine are rare, accounting for less than 2% of all adverse events. ¹² Only 15% of patients injured through negligent care initiate a lawsuit. ¹² Instead, the malpractice system is burdened with claims lacking evidence of error—often labeled “frivolous” lawsuits, which may comprise 40% to 80% of all liability claims in the United States. ¹² Claims without error were common in our sample (19% of claims lacked evidence of any misadventure), but represented a small portion of overall nerve injury indemnity (3% of total). Unfortunately, the circumstances behind these 7 lawsuits resulting in payment to the plaintiff but without evidence of medical error are not available due to privacy concerns. Although it is rare, these successful frivolous lawsuits should raise concerns about the integrity of the legal system.

Medical and Legal Standard of Care

The civil law governing medical malpractice is different in each state. Generally, four distinct legal criteria must be met for a plaintiff to recover damages from a successful malpractice suit: physician duty, breach of duty, harm, and causation. ¹³

Breach of duty may be roughly defined as medical negligence or the failure of a physician to uphold the standard of care. This interpretation is complicated by the fact that the standard of care is not a firmly established definition, but a concept that has evolved through legal history and varies from state to state. Some states have the term defined by statute, whereas in others it has evolved through case law.

In Missouri, standard of care is defined by statute as the failure “to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession.” ¹³ In Hall v. Hilbun, a 1985 case from Mississippi, the standard of care was defined as the obligation of a physician to exercise “minimally sound medical judgment and render minimally competent care” for a patient. ¹⁴ This standard does not require perfection in practice—instead, a physician must demonstrate a level of attention and skill comparable to a similarly trained health care professional.

In McCourt v. Abernathy, a 1995 case from South Carolina, the court found that physicians were not under obligation to guarantee recovery through the course of their care. ¹⁵ A poor patient outcome does not necessarily imply medical negligence or a breach of the standard of care. Although case law and statutes provide some clarity to the definition of “medical negligence” and medical malpractice law, juries are still responsible for deciding whether a physician’s deviation from the standard of care caused harm in each individual case. ⁵

Standard of Care in Nerve Surgery

To make a submissible case and proceed to sending the case to the jury for a decision, the plaintiff must have a physician expert witness offer testimony that the defendant fell below the standard of care and as a result caused damage to the patient. Oftentimes, malpractice cases come down to a “battle of the experts” where the credentials, experience, and qualifications of an expert are presented to the jury.

Even minor procedures in the upper extremity and neck may place nearby nerves at risk of injury, such as carpal tunnel release. Iatrogenic injury to a nerve within or near the surgical field is a known risk of surgery and should be included in informed consent discussions, including details about specific nerves at risk. Partial injuries (Sunderland I, II, or III) to large diameter nerves (eg, median, radial, ulnar) or complete injuries (Sunderland IV or V) to small diameter nerves (eg, accessory, facial, radial sensory) may result in severe neuropathic pain or significant motor or sensory deficit.^16-18 Complete injuries (Sunderland IV and V) to large diameter nerves during a primary surgical procedure may be more difficult to defend as standard of care.^16-18 Performance errors accounted for 50% of all claims in this study and more than 75% of total indemnity and correspond to trends in other surgical disciplines. ⁷ Under certain circumstances (morbid obesity, surgical emergency, infection, or tumor) or in any revision surgery, a complete injury to a large diameter nerve may occur despite due care and appropriate skill of the operating surgeon. Of course, each surgery and patient is different, and the individual circumstances of the case should be taken into consideration when determining whether complete injuries (Sunderland IV and V) to large diameter nerves are within or outside the standard of care.

In a court of law, the defense expert witnesses are often responsible for adequately communicating the surgeon’s challenge to the jury. Both legal experts and laypersons struggle to appreciate the difficulty of identifying and separating nerves from blood vessels, tendons, or connective tissue during surgery. The findings in this study emphasize the need for improved counseling of patients prior to any procedure where critical nerves are at risk of injury.

Suggestions From a Nerve Surgeon for Safer Practice

Assessing patient risk factors

Patient risk factors such as metabolic status, exposure limitations, microvascular disease, and revision nerve surgery should be carefully evaluated by the surgeon when choosing between open, endoscopic, or limited incision techniques to minimize the risk of acute nerve injury, postoperative scarring, and recurrent compression neuropathy. ¹⁹ Procedures and patient factors known to pose an increased risk of positioning-related nerve injury^20-23 (including obesity, major trauma, preexisting nerve pathology, and restriction of joint movement) should be assessed, and avoiding prolonged intraoperative pressure, tension, and stretch is important to reduce the incidence of positioning-related injuries.

Prompt diagnosis of nerve injury

Nerve injuries are identifiable through a meticulous history and clinical examination; imaging studies are rarely needed. ²⁴ Peripheral nerve injury should be suspected following any complaint of hypoesthesia, pain, paresthesia, or weakness not otherwise explained by soft tissue injury.^24,25

Use of electrodiagnostic studies

Electrodiagnostic studies provide evidence about the degree and location of injury and inform the surgeon of expected recovery potential (Supplemental Table 1). Electrodiagnostic studies are technician-dependent and should be performed by a specialist with substantial training and experience in evaluating traumatic nerve injuries. Studies should be performed 3 months following the injury to evaluate the likelihood of recovery; the presence of motor unit action potentials in involved muscle groups predicts a favorable recovery, and their absence at 3 months makes spontaneous recovery less likely.

Nerve injury recovery

The dogma to follow a neurologic injury for up to 2 years only pertains to favorable injuries with slow recovery (II-III degree).^16,17 Favorable injuries will recover over time and at most require a decompression operation to hasten or enhance regeneration. Unfavorable injuries (IV-V degree) will not recover without surgical nerve reconstruction, and management of these injuries is critically time-dependent.

Communication and record-keeping

Several authors have suggested that the quality of care rendered has a minor influence on a patient’s decision to sue—instead, lawsuits arise from the combination of a poor outcome and patient dissatisfaction.^7,12,26 Motivation to file a malpractice claim often includes patient frustration with a lack of explanation or apology for an error, and poor physician communication or insensitivity.^2,27 Patients are less likely to initiate a malpractice claim when they feel engaged as partners in their care and when the physician provides an explanation for the error and demonstrates compassion during the disclosure. ²⁸ Our experience is that patients need several discussions of the problem and care plan (including use of anatomical texts and models) before perceiving that communication is adequate.

In the pretrial process and in a court of law, the quality of the medical record is considered the physician’s most reliable defense. Poorly maintained records increase the likelihood of a guilty verdict, as it is difficult for expert testimony to assess the level of care provided. Each patient encounter must be meticulously documented. Signed informed consent and preoperative and postoperative photographs should be included when appropriate. Communication and record-keeping skills are developed through intentional effort and practice and should be emphasized in the curricula for residencies, fellowships, and continuing medical education. ⁸

Limitations of the MPL Database When Interpreting Malpractice Risk

The data in the MPL database represent a number of different insurance companies, which have differing views on settlement. Some companies sell policies with “consent” clauses; the case will not be settled unless the physician agrees to the settlement. Settlements result in a report to the National Practitioner Data Bank; thus, many physicians are reluctant to settle, even if it makes sense economically, particularly if they feel they did nothing wrong. Some insurers are more aggressive with trying cases that they view as “defensible” and in which they have expert support, whereas other insurers are more conservative and risk-adverse. Conversely, some insurers sell policies that do not have consent provisions and are much more willing to enter into settlements for economic reasons.

Medical malpractice law is largely governed at a state level, and there are wide variations in what a claim might be “worth” in one jurisdiction versus another. This influences potential settlements and verdict amounts. For example, jurors in a conservative venue may be less likely to find liability. If they find liability, juries tend to be more conservative with awards in rural and suburban areas versus urban areas. Some states have caps on the potential amount that can be awarded for noneconomic damages or limitations of what must be done before a claim can move forward, such as filing an affidavit of merit from an expert witness to identify “frivolous” lawsuits at an early stage. These state-specific factors can substantially influence what might be awarded to a plaintiff in a particular case.

The quality of the lawyer a patient (or medical care provider) obtains can make a significant difference in the amount of the settlement or verdict and can affect the case value. Certain lawyers are more willing to try cases than others and will expect higher fees; resources for trial allow expert witnesses to testify, develop good exhibits, and use technology to their advantage. As with some insurance carriers, some defense lawyers are risk-adverse and are more likely to recommend settlement.

Finally, the value of the case can vary dramatically depending on the nature of the injury and the extent of damages to the plaintiff. Patient age, lifestyle, occupation, and the potential for loss of income or quality of life can result in very different damages awarded for similar injuries.

Conclusion

Malpractice claims associated with peripheral nerve injuries are common and costly to defend for hand surgeons. Most claims are related to the management of common diagnoses, including CTS and upper extremity fractures. Most adverse events that result in nerve injury claims occur in the operating room and are linked to accusations of improper performance. In this study, 83% of nerve injury cases taken to trial resulted in verdicts in favor of the physician. One thing the statistics fail to take into account is the emotional toll that being subjected to the legal system has on the medical care provider. While the plaintiff and his or her lawyer are looking for money damages, the best the physician can hope for is to leave the courtroom with reputation and integrity intact.