Claims and Outcomes of Lawsuits after Antireflux Surgery in the United States

Joshua A Boys, MD1, Brian Hoffman, JD2, Daniel S Oh, MD1, Jeffrey A Hagen, MD1, Brenda Radmacher, JD2, Evan T Alicuben, MD1, Steven R DeMeester, MD1. 1University of Southern California, Keck School of Medicine, Los Angeles, California, 2Wood Smith Henning & Berman

Objective: Antireflux surgery should have a low morbidity rate.  Major complications might lead to a lawsuit. The aim of this study was to determine factors that led to a lawsuit after antireflux surgery and the outcome of the lawsuit.

Methods: We queried two major legal databases, the Physician Insurers Association of America and the Westlaw database, for liability claims related to antireflux surgery from 2004 – 2013.  

Results: There were 175 claims.  Three medical factors led to 82% of all claims:  improper performance of the procedure (68%), failure to recognize a complication (9%) and errors in diagnosis (5%).  The most common injury leading to a claim was perforation.  Of the 175 claims, 81 (46%) were withdrawn or dismissed, 55 (32%) settled or were arbitrated, 34 (19%) went to a trial verdict and in 5 (3%) the disposition was unknown.  The average settlement or arbitration award was $331,354.  In the 34 cases that went to a trial verdict 32 were found in favor of the defense.  Of the 2 trial verdicts for the plaintiff the award ($1.5 million) was known in one case.  The claim associated with a trial verdict case was known for 12 of the 34 cases and in 7 it was related to a perforation.  Overall, a claim related to perforation led to payment in only 28% of cases.

Conclusion: Lawsuits after a fundoplication were usually related to improper performance of the procedure or failure to recognize or manage complications.  Perforation was the most common injury leading to a claim, but most commonly was not associated with a monetary payment.  Trials that went to a verdict were nearly always found for the defense.  Therefore, when appropriate, surgeons should insist on a trial.

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