Medico-legal risk: What otolaryngologists need to know

At the end of 2021, 735 CMPA members were otolaryngologists (Type of Work 77). In the recent 5 years (2017 – 2021)¹, 23.4% of otolaryngologists were named in one new medico-legal case (legal action or complaint), and another 14.2% were named in two or more new cases.

Annually, 10.5% of otolaryngologists were named in one new medico-legal case, and an additional 1.6% were named in two or more new cases on average across this five-year period.¹

What are the relative risks of a medico-legal case for otolaryngologists?

Between 2012 and 2021, the rate of College matters² for otolaryngologists showed more fluctuations compared to the group of all surgical specialties. Overall, there was no significant difference between the two groups during this period.

Compared to all surgical specialties, otolaryngologists had consistently lower rates of civil legal actions.

The following sections describe the findings based on the 242 civil legal cases, College, and hospital matters involving otolaryngologists with peer expert criticism that were closed by the CMPA between 2011 and 2021.

What are the most common patient complaints and peer expert criticism? (n=242)³

Complaints are a reflection of the patient’s perception that a problem occurred during care. These complaints are not always supported by peer expert opinion. Peer experts may not be critical of the care provided, or may have criticisms that are not part of the patient allegation. These complaints might not result in a negative finding by a College or court.

What are the most frequent interventions with peer expert criticism? (n=242)

The most common peer expert criticisms on these interventions include:

• Inadequate documentation
• Insufficient knowledge/skill
• Deficient assessment
• Inadequate consent process
• Poor decision-making regarding management

Intervention frequencies among medico-legal cases are likely representative of otolaryngologists’ practice patterns and do not necessarily reflect high risk interventions.

In the 242 cases, 36 patients suffered injuries during a procedure. For example,

• punctured dura causing CSF leak during endoscopic sinus surgery
• orbital lamina puncture during ethmoid sinus endoscopic polypectomy
• facial nerve injury during tympanoplasty
• severed facial artery during tonsillectomy

In addition, patients received the wrong surgery, e.g. surgery performed on the wrong ear.

What are the top factors associated with severe patient harm⁴ in medico-legal cases?

Risk reduction reminders

The following risk management considerations have been identified for otolaryngologists.

Pre-operative

• Ensure all diagnostic indices have been considered including an appropriate differential diagnosis. Consider risk factors from the patient’s medical history, co-morbid conditions, and current medications and their impact on the patient’s treatment.
• Ensure the consent discussion includes clear and accurate explanations of the material risks and benefits of the proposed procedure or therapy, post-operative expectations, and alternative options. Check for understanding from the patient or family/substitute decision-maker (where appropriate), and answer questions. Document the discussion details in the medical record.
• Have a reliable system in place to facilitate the timely receipt, effective review, and appropriate management and follow-up of diagnostic tests.

Intra-operative

Generally, a surgical safety checklist should be completed and should include:

• A review of the patient’s medical record for relevant risk factors or considerations
• Confirmation of having obtained and documented the patient’s informed consent
• Verification of the patient’s identity, the planned procedure, and the operative site
• Confirmation that the correct operative site and side have been defined and clearly marked, e.g. use an “operate through your initial” approach if applicable, wherein the operative site is initialed externally with a marker; by cutting through your initials, you know that you are operating on the correct site and side
• Confirmation that pre-operative antibiotics were administered and venous thromboembolism prophylaxis was instituted, as appropriate

Post-operative

• Ensure appropriate post-operative patient monitoring has been ordered. Ask team members (e.g. nurses, residents) to alert you of unexpected signs and symptoms.
• Carefully document patient conditions, discharge instructions, and follow-up plan, and clearly communicate the need for ongoing monitoring to the patient or family/substitute decision-maker (where appropriate) and to the healthcare provider responsible for the follow-up.
• While many suboptimal outcomes reflect the inherent risks of a procedure, others can generally be avoided with appropriate planning and safety protocols. In many cases, diligent follow-up, disclosure, and documentation of actual or possible complications improves outcomes and communication with the patient or family/substitute decision-maker where appropriate. Principles of vigilance and clear communication can extend to all aspects of otolaryngology practice to improve care and reduce the risk of medico-legal difficulties.

Now that you know your risk…

Mitigate your medico-legal risk with CMPA Learning resources.

• eLearning activity: Informed consent
• CMPA workshop: Advanced diagnostic reasoning
• CMPA workshop: Theatre arts
• CMPA workshop: Test results follow-up

Questions?

Please contact [email protected]

Notes

1. 1. 
   It takes an average of 2-3 years for a patient safety incident to progress into a medico-legal case. As a result, newly opened cases may reflect incidents that occurred in previous years.
2. 2. 
   Physicians voluntarily report College matters to the CMPA. Therefore, these cases do not represent a complete picture of all such cases in Canada.
3. 3. 
   Peer experts refer to physicians who interpret and provide their opinion on clinical, scientific, or technical issues surrounding the care provided. They are typically of similar training and experience as the physicians whose care they are reviewing.
4. 4. 
   Severe patient harm includes death, catastrophic injuries, and major disabilities. Healthcare-related harm could arise from risk associated with an investigation, medication, or treatment. It could also result from failure in the process of patient care.
5. 5. 
   Patient factors include any characteristics or medical conditions that apply to the patient at the time of the medical encounter, or any events that occur during the medical encounter.
6. 6. 
   Based on peer expert opinions.