Lack of physician-patient communication as a key factor associated with malpractice litigation in neonatal brachial plexus palsy

Clinical article

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Object

Perinatal disorders are prone to malpractice litigation. Neonatal brachial plexus palsy (NBPP) results from stretching the nerves in the perinatal period and may lead to paresis or paralysis and sensory loss in the affected arm. Little is known about the key factors associated with malpractice litigation by families of patients with NBPP and whether these factors reflect the practice environment or are inherent to the condition. In this study, the authors documented the percentage of families of NBPP patients at a specialty center that had filed a malpractice suit and described the key factors associated with that pursuit of legal action.

Methods

The families/caregivers of 51 patients with NBPP who had presented to the University of Michigan Interdisciplinary Brachial Plexus Program participated in this study. A qualitative research design was applied using both a questionnaire to examine psychosocial factors and a dynamic tool to measure health outcomes from the patient perspective via parent proxy (Patient-Reported Outcomes Measurement Information System [PROMIS] assessment instruments). Statistical analysis included the Fisher exact test, chi-square test, and Student t-test. The study protocol was approved by the University of Michigan institutional review board.

Results

Forty-seven percent of the families pursued malpractice litigation. In comparing patient families that had pursued legal action with those that had not, significant differences were revealed in the perception that the sustained birth injury was unnecessary (p = 0.002), the information received in the perinatal period was inadequate (p = 0.003), family concerns were ignored in the perinatal period (p = 0.005), and family concerns were not adequately addressed (p < 0.001). Sixty-six percent of the families received external advice to pursue legal action. The PROMIS survey revealed significant group differences in depressive symptoms (p = 0.008), fatigue (p = 0.02), pain (p = 0.01), and anger (p = 0.004). In contrast, the extent of NBPP was not associated with malpractice litigation (p = 0.18). Age, sex, and race were not significantly different between litigation and nonlitigation groups.

Conclusions

Physician-controllable factors, such as communication in the perinatal period, are associated with malpractice litigation in NBPP. The perceived level of global disability may affect the pursuit of malpractice litigation, whereas the isolated extent of nerve root involvement and/or upper extremity dysfunction are not significant factors in pursuing litigation. Identifying and ameliorating these factors within the practice environment may decrease the animosity between families and health care providers and improve overall outcome for patients with NBPP.

Abbreviations used in this paper:NBPP = neonatal brachial plexus palsy; PROMIS = Patient-Reported Outcomes Measurement Information System; SES = socioeconomic status.

Abstract

Object

Perinatal disorders are prone to malpractice litigation. Neonatal brachial plexus palsy (NBPP) results from stretching the nerves in the perinatal period and may lead to paresis or paralysis and sensory loss in the affected arm. Little is known about the key factors associated with malpractice litigation by families of patients with NBPP and whether these factors reflect the practice environment or are inherent to the condition. In this study, the authors documented the percentage of families of NBPP patients at a specialty center that had filed a malpractice suit and described the key factors associated with that pursuit of legal action.

Methods

The families/caregivers of 51 patients with NBPP who had presented to the University of Michigan Interdisciplinary Brachial Plexus Program participated in this study. A qualitative research design was applied using both a questionnaire to examine psychosocial factors and a dynamic tool to measure health outcomes from the patient perspective via parent proxy (Patient-Reported Outcomes Measurement Information System [PROMIS] assessment instruments). Statistical analysis included the Fisher exact test, chi-square test, and Student t-test. The study protocol was approved by the University of Michigan institutional review board.

Results

Forty-seven percent of the families pursued malpractice litigation. In comparing patient families that had pursued legal action with those that had not, significant differences were revealed in the perception that the sustained birth injury was unnecessary (p = 0.002), the information received in the perinatal period was inadequate (p = 0.003), family concerns were ignored in the perinatal period (p = 0.005), and family concerns were not adequately addressed (p < 0.001). Sixty-six percent of the families received external advice to pursue legal action. The PROMIS survey revealed significant group differences in depressive symptoms (p = 0.008), fatigue (p = 0.02), pain (p = 0.01), and anger (p = 0.004). In contrast, the extent of NBPP was not associated with malpractice litigation (p = 0.18). Age, sex, and race were not significantly different between litigation and nonlitigation groups.

Conclusions

Physician-controllable factors, such as communication in the perinatal period, are associated with malpractice litigation in NBPP. The perceived level of global disability may affect the pursuit of malpractice litigation, whereas the isolated extent of nerve root involvement and/or upper extremity dysfunction are not significant factors in pursuing litigation. Identifying and ameliorating these factors within the practice environment may decrease the animosity between families and health care providers and improve overall outcome for patients with NBPP.

Perinatal disorders are prone to malpractice litigation because of the emotionally charged environment in the perinatal period. Neonatal brachial plexus palsy (NBPP) is a perinatal condition that manifests as a paretic or paralytic arm that results from stretching the nerves of the brachial plexus. The disorder has a reported incidence (rivaling cerebral palsy) of 1–4 cases in 1000 live births and is a major physical perinatal disorder encountered by practitioners.8 The etiology of NBPP includes intrauterine forces, maternal propulsive forces, and traction during delivery.2,7,18 Consequently, NBPP is a leading cause of medical malpractice lawsuits claiming neurological birth injury, second only to cerebral palsy.13

As many as 20%–30% of patients with NBPP suffer long-term functional consequences.11,17 Caring for these extensively affected children becomes a life-long process, including physical and/or occupational therapy as well as specialized medical equipment that often imposes a heavy financial burden. Families and caregivers observe the daily struggles of these children in activities of daily living, and the perceived level of disability often differs from the clinical extent of the nerve root involvement documented by practitioners in the medical record. Little is known about the qualitative or quantitative factors that prompt the families of NBPP patients to pursue malpractice litigation and whether these factors reflect the practice environment or are inherent to the condition. Patient families file medical malpractice lawsuits because of the uncertainty regarding the future of the affected child and the possible losses in future earnings, particularly in cases of permanent disability,9 but the relationship between the extent of the NBPP condition and the decision to make a claim remains undefined. We report the prevalence of patients with NBPP whose families pursued malpractice litigation and determine the key factors prompting these families to file medical malpractice claims.

Methods

Study Participants

The University of Michigan institutional review board approved the study protocol. Fifty-one adult caregivers of children with NBPP at the University of Michigan Interdisciplinary Brachial Plexus Program clinic were consecutively recruited between May and December 2012. Exclusion criteria included comorbid medical conditions and English as a nonprimary language.

Data Collection

Participants completed 1) a psychosocial questionnaire derived, with modification, from the survey developed by Hickson et al.,9 querying the participant's perception of the perinatal period; and 2) the Patient-Reported Outcomes Measurement Information System (PROMIS) Parent Proxy instrument, which examines health-related quality of life pertaining to depression, anxiety, anger, peer relationships, fatigue, pain, upper extremity function, and mobility (http://www.nihpromis.org). We reported caregiver responses using standard T-scores (that is, mean [M] ± SD, 50 ± 10; http://www.nihpromis.org). Demographic data (age, sex, and race) and extent of nerve root involvement of NBPP (Narakas Groups I and II were considered to be less extensive; and Groups III and IV, more extensive14) were obtained from an institutional review board–approved database.

Statistical Analysis

Descriptive statistics included patient demographics and questionnaire responses. The Fisher exact test and chi-square tests were used to compare differences in sex, race, and Narakas groups between litigation and nonlitigation groups. Student t-tests were used to compare group differences in mean age and PROMIS scores. Statistical significance was defined as p < 0.05. All statistical analyses were performed using SPSS software, version 20.0 (SPSS Inc.).

Results

Table 1 displays patient demographics. To assess for potential factors prompting malpractice litigation, all analyses compared patient characteristics and responses from families that had pursued malpractice litigation with those that had not. Forty-seven percent of the families (24) reported the pursuit of litigation. The mean age of all patients was 46 months (range 1–168 months). Age was defined as age at the time of study participation and therefore does not necessarily represent age at the time of initial presentation to our clinic, which provided continuing care. There were no significant differences between litigation and nonlitigation groups in terms of patient age, sex, race, or Narakas group.

TABLE 1:

Summary of patient demographics for families that pursued malpractice litigation for NBPP and those that did not

FactorTotal Study PopulationLitigationNo Litigationp Value
no. of patients (%)5124 (47)27 (53)
mean age in mos (range)46 (1–168)53 (3–168)40 (1–156)0.33*
sex (%)0.28
 M21 (41)8 (33)13 (48)
 F30 (59)16 (67)14 (52)
race (%)0.22
 white36 (71)16 (67)20 (74)
 black8 (16)3 (13)5 (19)
 Asian1 (2)01 (4)
 other6 (12)5 (21)1 (4)
Narakas group0.18
 I & II22 (43)8 (33)14 (52)
 III & IV29 (57)16 (67)13 (48)

Student t-test was applied for group comparison.

Chi-square test or Fisher exact test was applied for group comparisons.

Regarding responses to the psychosocial questionnaire (Table 2), significant group differences existed in all aspects other than receiving proper referral. Among families that had pursued malpractice litigation, the majority believed that 1) their child had sustained an unnecessary birth injury (p = 0.002); 2) they had not received adequate information in the perinatal period (p = 0.003); 3) their concerns had been ignored in the perinatal period (p = 0.005); and 4) these concerns had not been adequately addressed by their treating practitioners (p < 0.001). The most common reasons identified by families for pursuing legal action included 1) worry about future functional ability (21 [87.5%]); 2) prevention of a similar occurrence for another patient/family (15 [62.5%]); and 3) worry concerning the medical and financial costs of treatment (14 [58.3%]). Other frequently cited reasons were directed toward medical providers: anger (12 [50%]), frustration (13 [54.2%]), ignored family's feelings (11 [45.8%]), lack of explanation (11 [45.8%]), and lack of sympathy (10 [41.7%]). There was also a significant difference between groups as to recommendations to seek legal action. Sixty-six percent of families (33) received a suggestion to pursue a medical malpractice claim. Among these families, 79% (26) received a suggestion from other family members, 48% (16) from family friends, 27% (9) from television, and 9% (3) from Internet sources.

TABLE 2:

Responses to psychosocial questionnaire by families that pursued malpractice litigation for NBPP and those that did not

QuestionTotal ResponsesLitigationNo Litigationp Value
unnecessary birth injury sustained (%)0.002*
 yes36 (75)22 (96)14 (56)
 no12 (25)1 (4)11 (44)
received adequate info at birth (%)0.003*
 yes16 (33)3 (12)13 (52)
 no33 (67)21 (88)12 (48)
concerns ignored in perinatal period (%)0.005*
 yes29 (59)19 (79)10 (40)
 no20 (41)5 (21)15 (60)
received proper referral (%)0.23*
 yes38 (74)16 (67)22 (81)
 no13 (26)8 (33)5 (19)
concerns dealt with at birth (%)<0.001*
 yes18 (38)3 (13)15 (62)
 no30 (62)21 (87)9 (38)
advised to seek legal action (%)<0.001*
 yes33 (66)23 (96)10 (38)
 no17 (34)1 (4)16 (62)

Chi-square test or Fisher exact test was applied for group comparisons.

Table 3 summarizes the PROMIS Parent Proxy data. In general, families who pursued malpractice litigation reported lower perceived health-related quality of life and greater global disability than nonlitigation families. Analysis of the PROMIS Parent Proxy surveys revealed significant group differences in depressive symptoms (p = 0.008), fatigue (p = 0.02), pain interference (p = 0.01), and anger (p = 0.004). Although nonlitigants indicated significantly better functioning on these scales, scores for both litigants and nonlitigants were within the normal range (that is, within 1 SD of the mean or better). While there was no significant difference between groups in upper extremity function (p = 0.88), both groups indicated significant deficits relative to the general population (that is, scores were < 2.5 SD below the mean for both groups).

TABLE 3:

Mean patient PROMIS Parent Proxy T-scores dichotomized by families that pursued malpractice litigation for NBPP and those that did not*

Assessment InstrumentTotal Study PopulationLitigationNo Litigationp Value
no. of cases512427
depressive symptoms41 ± 744 ± 839 ± 50.008
fatigue39 ± 742 ± 837 ± 60.02
pain interference44 ± 747 ± 841 ± 60.01
peer relationships43 ± 1642 ± 1443 ± 170.90
upper extremity function26 ± 1326 ± 1126 ± 150.88
anger47 ± 1251 ± 1242 ± 110.004
anxiety45 ± 1047 ± 1143 ± 90.16
mobility40 ± 1338 ± 1041 ± 150.52

Data are presented as the means ± standard deviation; the Student t-test was applied for group comparisons. For all PROMIS measures, higher scores indicate more of a given construct; therefore, higher scores for depression, anxiety, and anger indicate poorer functioning. On the contrary, higher scores for upper extremity function, mobility, and peer relationships indicate better functioning.

Parameters fall out of significance when data are restricted to an age ≥ 5 years.

Discussion

Physician-Patient Communication Matters

In the United Kingdom National Health Service, claims made for perinatal injury or death account for 60%–70% of yearly malpractice sums paid.6 This observation underscores the fears that many families of affected children have relating to the possibility of lifelong disability. A previous study of medical malpractice claims pertaining to perinatal conditions found that the most common factors identified by families as prompting their legal action included perception of attempted cover-up, worries about the child's future, and the lack of information provided—notably, a lack of communication between families and health care providers.9,10 Our study confirmed that physician-controlled factors contribute significantly to the family decision-making process regarding the pursuit of malpractice litigation. According to the questionnaire responses, a perceived lack of physician empathy and honesty was pervasive among those who pursued litigation, and the most frequent reason for litigation identified by families was concern for the child's future. Experiential evidence has shown that the key to reducing the amount of litigation and its associated costs may lie in expanded communication in such situations.3 We suggest a proactive and “hands-on” approach when facing situations in which a malpractice claim may arise, as improved communication between physician and patient/family will likely decrease the risk of malpractice litigation.

There was no difference between litigation and nonlitigation groups regarding a family's perception that they had received proper referral for their child's medical care. We expected that a delay in receiving proper referral would frustrate families and lead them to pursue legal action at a higher rate; however, both litigation and nonlitigation groups (67% and 81%, respectively) reported that they had received proper referrals. This finding may reflect a potential selection bias, since all study participants were recruited from our Interdisciplinary Brachial Plexus Clinic, which indicates that families have been referred to us to receive specialized care.

Association of Depression, Fatigue, Pain, and Anger With Malpractice Litigation

Through PROMIS Parent Proxy surveys, we further explored family perceptions of their child's disability and quality of life. The National Institutes of Health PROMIS Parent Proxy survey was developed with the idea that patient-reported outcomes add a valuable dimension to clinical research and practice.5 Previous researchers established the reliability and validity of the PROMIS Parent Proxy surveys in children 5–17 years old across general pediatric and subspecialty clinics.12,16 In the present study, measurements of patient health-related quality of life using the PROMIS Parent Proxy surveys revealed group differences in the depressive symptoms, fatigue, pain, and anger that may contribute to the pursuit of litigation. These factors may be difficult for physicians to identify during brief interactions in clinical visits; however, it is essential to understand family concerns and values to provide the best counseling and timely treatment suggestions. This could also prevent misunderstandings and misleading conversations.10

Overall, PROMIS Parent Proxy survey scores were within the normal range for both groups (mean score 40–60), with the exception of upper extremity function, which was 2.5 SD below the general population means. Furthermore, there was no difference in upper extremity function (as measured by our chosen methods) between litigation and nonlitigation groups. Pediatric PROMIS surveys focus on measuring generic health domains across a variety of illnesses.5 Although our study demonstrated that PROMIS surveys may be useful in capturing patient-reported outcome differences between NBPP and general populations, they may not be able to differentiate the subtle differences among NBPP patients, as the surveys are not disease specific.

Physical Extent of Nerve Root Involvement in NBPP and Malpractice Litigation

The Narakas grading scale is commonly used to classify the extent of nerve root involvement in NBPP.1 Groups I and II are considered to be less extensive, and Groups III and IV are considered more extensive. This manner of analysis was justified clinically because the higher-grade lesions require more intensive treatments, including surgical repair and intensive occupational therapy that can impose a financial burden to the family. We hypothesized that the more extensively affected group would have a higher rate of pursuing litigation; however, our results failed to demonstrate a significant difference in the Narakas grades between the 2 groups. This phenomenon parallels a previous analysis of settled malpractice cases that showed no relationship between extent of injury or disability and final payment made.15 As stated in the previous paragraph, the PROMIS upper extremity function measure, which pertains to physical outcome, showed no relationship to the pursuit of litigation, further strengthening the notion that physical outcome plays a minor role in the decision to file a malpractice suit.

Study Strengths and Limitations

The strength of this study lies in the ability to compare the characteristics of families within a specific population that had decided to pursue malpractice litigation with those of families that had not, so that the nature of the condition was not a confounding factor. Many previous studies began by identifying persons who had filed or settled medical malpractice cases, then ascertained their reasons for pursuing litigation while neglecting those persons who were in similar situations and had chosen not to file a malpractice suit. To avoid misleading respondents and to reduce the self-selection bias, our questionnaire was designed with straightforward yes/no responses, leaving the final question to query those who sought legal action and their reasons (Table 2). In addition, to address the patient/family perspective, we used PROMIS surveys measuring patient-reported outcomes.

A possible issue arises when we consider that communication is a dynamic process that is inherently two-way in nature. The psychosocial questionnaire asks families to retrospectively reflect on their experience during the intrapartum and immediate postpartum periods; therefore, it is possible that their experiences in the intervening time period affected their responses to the questionnaire. It is also possible that families that met with malpractice lawyers may have been biased by this exposure, raising the notion that some families may have been coached to give certain answers. A more prospective study could address this concern by identifying and following naïve families.

Some evidence in the literature suggests that among persons with an equal disability, those of a lower socioeconomic status (SES) are less likely to sue than those of a higher SES.4 We did not collect information regarding median household income and level of education, which may have allowed us to distinguish SES; therefore, we cannot comment on the effect that SES had in our study.

A limitation of our study was the relatively small sample size, which did not permit the use of regression models that may have allowed us to comment on the likelihood with which a family with certain characteristics would file a medical malpractice claim. A post hoc power analysis suggested our current sample size reached 60% power, and a sample size of 81 would have been required to reach 80% power for a logistic regression model. Our study is the first step in understanding the prevalence of malpractice litigation in the NBPP population, while a future study with a larger sample size should be conducted for further investigation of this topic. In addition, the study sample was drawn from one specialized clinic, which may preclude immediate generalization to a broader population.

Conclusions

A breakdown in physician-patient communication appears to be a key factor associated with the pursuit of malpractice litigation by families of children with NBPP. Global quality of life and perceived disability from the patient and/or family perspective also affected the pursuit of litigation; thus, we suggest that this topic should be addressed as part of the treatment paradigm. Since the physical extent of NBPP was not a significant factor in the decision to pursue malpractice litigation, the fear of litigation in extensively affected patients should not deter open physician-patient communication. Additional research is needed to assess these findings in other populations before the concepts can be generalized to larger areas of medicine. However, we hope that by identifying and ameliorating these factors within the practice environment, the overall outcome for patients with NBPP will improve and the animosity between patients and health care providers will be reduced.

Disclosure

The authors report no conflict of interest concerning the materials or methods used in this study or the findings specified in this paper.

Author contributions to the study and manuscript preparation include the following. Conception and design: Yang. Acquisition of data: all authors. Analysis and interpretation of data: Domino, Chang, Carlozzi. Drafting the article: Domino, Chang. Critically revising the article: all authors. Reviewed submitted version of manuscript: all authors. Approved the final version of the manuscript on behalf of all authors: Yang. Study supervision: Yang.

References

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Article Information

Address correspondence to: Lynda J. S. Yang, M.D., Ph.D., Department of Neurosurgery, University of Michigan, 1500 E. Medical Center Dr., Room 3552 TC, Ann Arbor, MI 48109-5338. email: ljsyang@med.umich.edu.

Please include this information when citing this paper: published online December 13, 2013; DOI: 10.3171/2013.11.PEDS13268.

© AANS, except where prohibited by US copyright law.

Headings

References

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