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Claims and Outcomes of Lawsuits after Antireflux Surgery in the United States
Joshua A. Boys1, Brian Hoffman2, Daniel S. Oh1, Brenda Radmacher2, Evan T. Alicuben1, Steven R. DeMeester1.
1University of Southern California, Los Angeles, CA, USA, 2Wood, Smith, Henning & Berman LLP, Los Angeles, CA, USA.

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 Of the 175 claims, 81 (46%) were withdrawn or dismissed, 55 (32%) settled or were arbitrated, 34 (19%) went to a trial verdict and in 5 (3%) the disposition was unknown.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 ,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 (.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.
CONCLUSIONS: 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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