Malpractice lawsuits related to colonoscopy continue to pose challenges for practitioners, and a new analysis reveals that errors related to sedation are more likely to be awarded to plaintiffs. Primary care physicians and surgeons are often codefendants, which emphasizes the importance of interdisciplinary care in colonoscopy.
Dr. Lawrence Kosinski
Cases involving informed consent were more likely to be ruled for the defendant, while those tied to medication error favored the plaintiff, according to an analysis of cases from the Westlaw legal database. The study, led by Krishan S. Patel and Sushil Ahlawat of Rutgers New Jersey Medical School, Newark, was published in the Journal of Clinical Gastroenterology.
According to the authors, 55% of physicians face a malpractice suit at some point in their careers, and gastroenterology ranks as the sixth most common specialty named in malpractice suits. Every year, about 13% of gastroenterologists confront malpractice allegations, and colonoscopy is the most common reason.
The researchers searched the Westlaw legal database for malpractice cases involving colonoscopy or sigmoidoscopy, identifying 305 cases between 1980 and 2017. The average patient age was 54.9 years, and 52.8% of cases were brought by female patients. The most cases were from New York (21.0%), followed by California (13.4%), Pennsylvania (13.1%), Massachusetts (12.5%), and New Jersey (7.9%). Gastroenterologists were named in 71.1% of cases, internists in 25.6%, and surgeons in 14.8%.
A little more than half (51.8%) of cases were ruled in favor of the defendant, and 25% for the plaintiff; 17% were settled, and 6% had a mixed outcome. Payouts ranged from $30,000 to $500,000,000, with a median of $995,000.
There were multiple causes of litigation listed in 83.6% of cases. The most frequent causes were delayed treatment (65.9%), delayed diagnosis (65.6%), procedural error/negligence (44.3%), and failure to refer/reorder tests (25.6%).
Of 135 cases alleging procedural negligence, 90 (67%) named perforation. Among 79 cases that cited a failure to refer and order appropriate tests, 97% claimed the defendant missed a cancerous lesion. In cases alleging missed cancers, 31% were in the cecum, and 23% in the anus.
A logistic regression analysis of factors associated with a verdict for the defendant found “lack of informed consent” to be an independent predictor of defendant verdict (odds ratio, 4.05; P = .004). “Medication error” was associated with reduced defendant success (OR, 0.17; P=.023). There were nonsignificant trends between reduced odds of a verdict for the defendant and lawsuits that named “delay in diagnosis” (OR, 0.35; P = .060) and “failure to refer” (OR, 0.51; P = .074).
The authors sound a dire note about the number of malpractice suits brought against gastroenterologists, but Lawrence Kosinski, MD, is more sanguine. He notes that gastroenterologists have low insurance premiums, compared with other specialties, but recognizes that colonoscopies are a significant source of risk.
Dr. Kosinski, who is chief medical officer at SonarMD and formerly a managing partner at the Illinois Gastroenterology Group, said in an interview that the study is revealing. “It comes out in the article: Acts of omission are more dangerous to the physician than acts of commission. Not finding that cancer, not acting on that malignant polyp, not pursuing it, is much more likely to get you in trouble than taking it off and perforating a colon,” said Dr. Kosinski, who was not involved in the study.
To gastroenterologists seeking to reduce their risks, he offered advice: You shouldn’t assume that the patient has read the information provided. Risks of anesthesia and the procedure should be directly communicated. It’s also important to document the procedure, including pictures of the cecum and rectal retroflexion. Finally, don’t rush. “This isn’t a race. Clean the colon, make sure you don’t miss something. If that person pops up in 3 years with a cancer, someone may go after you,” said Dr. Kosinski.
No source of funding was disclosed. Dr. Kosinski has no relevant financial disclosures.