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Medical Malpractice in the U.S.
Medical malpractice is big business. Estimates are that medical liability costs in the U.S. exceed $40 billion annually. The stakes for both sides are very high. Plaintiff attorneys, working on contingency arrangements typically front the costs of litigation in the hopes of a giant payday for themselves and their clients. Defense costs are borne by the physicians themselves, either directly or indirectly via insurance premiums. In addition, physicians risk licensure restrictions, damage to their professional reputation and even the potential for loss of livelihood from an adverse verdict.
The past few years have seen sharp surges in malpractice insurance rates driven in part by greater frequency of litigation, larger awards and/or increased defense costs. The average payout, as well as the number of cases with verdicts exceeding $1 million has increased substantially. Attorneys often point to jurors' capabilities to explain unexpected verdicts.
Juries in the U.S. are selected from the general population pool. Although physicians are included in potential jury pools, they are typically eliminated in medical malpractice cases during the process of jury selection called voidere. Occasionally other medical professionals are selected to sit on juries involving medical negligence. However, more often jurors have little or no medical background. The argument has been made that medical malpractice cases are too technically complex for the average layperson to fully grasp within the brief timetable of a trial. A successful outcome is often linked to the attorney's ability to effectively convey his point of view.
Attorneys for each side try to create the greatest advantage for their clients by employing a number of legal tools at their disposal. The attorneys argue the case for, or against, the physician's negligence using traditional evidence such as medical records, witness testimony and medical expert opinions. At trial, medical illustrations and artwork are often utilized to clarify or emphasize a point to the jury. We have incorporated the use of computer graphics to create enhanced medical illustrations.
Medical Animations: What are they?
Illustrations presented at trial have traditionally been static diagrams or sketches presented to sharpen a visual image for the jury. Medical illustrations may be used to demonstrate anatomy or physiologic pathways to help explain pathologic circumstances. Surgical procedures can be illustrated using diagrams from textbooks or journals. Computer technology and advanced software applications have allowed us to take medical illustrations to the next level.
Plastic surgery and dermatology are very visual specialties. Often results are in highly visible areas for the entire world to see. In addition, these procedures are typically photographed by the physician. The photo-documentation incorporated into these procedures creates a unique opportunity for useful medical illustration at trial.
In cases of alleged medical negligence, information is gathered from these photographs, as well as medical records, operative reports, sworn testimony, expert medical examination, and journal or text references. In order to defend against admissibility challenges at trial, the information is totally customized to the plaintiff's circumstances. The information is loaded onto the computer and using advanced software is enhanced into a dynamic medical animation.
The Animation Team
The process is coordinated by the attorney, the expert physician and the computer graphic artist. The attorney determines the goals to be emphasized by the animation. These goals may be to explain the steps and decision points involved in a particular surgery or perhaps how a revisional procedure could mitigate potential damages.
The lay public often tends to minimize plastic surgery procedures. Despite complex anatomy and surgical physiology, aesthetic procedures are often relegated to simplistic terms such as a "boob job" or a "nose job". Ironically, these procedures are often difficult to conceptualize, even by other physicians. They require a keen sense of spacial relationships and topography.
Attorneys often feel that educated jurors are more likely to empathize with their client. The medical animation gives the lay person a unique view into a customized operation. Another area where the animations are utilized is to fill in gaps of previous surgery or proposed corrections where photographs may not be obtainable. A proposed surgical correction may significantly impact the damages claimed by a plaintiff.
The expert physician is a critical component of the team. The physician must interface between the goals of the attorneys and the skill of the graphic artist. It is up to the expert physician to incorporate all of the available facts and accurately synthesize the information into a logical educational sequence.
The computer graphic artist is given the great responsibility of making the evidence come to life. The process is similar to creation of a cartoon. Using the available photographs, data and diagrams, the artist undertakes a painstaking, frame-by-frame assembly of the animation. Intervening movement is added by using computer generated images. The process involves an active dialog among the three team members until the final product is created.
(see Case Reports below)
Conclusion
Medical animations are a new tool that can be utilized by physicians and medical malpractice attorneys. They have been used successfully both at trial and at mediation proceedings. Current use of medical illustrations is helpful but only static in nature. Simple verbal descriptions are inadequate for aesthetic cases.
Case Report (C.L.)
The patient is a young female who underwent a conventional, Wise-pattern breast reduction. Post-operatively she developed keloid scars. The surgeon injected her with Kenalog. The peri-areolar scars spread and the patient complained of a deformed appearance. A medical negligence action was filed against the surgeon alleging that the Kenalog concentration was excessive and caused skin atrophy and spread scars.
Upon careful review of the records it was noted that the patient had gained 100 lbs. and her breast size grew from a pregnancy following surgery. The plaintiff was required to undergo an expert medical examination (E.M.E.).
The defense argued that it was the additional breast weight, and not the Kenalog, that caused the scars to spread. Moreover, it was argued that she would benefit from a secondary breast reduction and, based upon the patient's measurements taken at E.M.E., the surgery would eliminate the entire area of unsightly scarring.
A medical animation was created using the patient's own photographs, the operative record, measurements taken at E.M.E., textbook diagrams and computer graphics. The goal was to educate the jury about breast reduction surgery and demonstrate how a secondary breast reduction would completely eliminate the patient's complaints and therefore mitigate any damages claimed. The medical animation was narrated and explained by the expert at trial. The jury returned a verdict in favor of the defendant physician.
Case Report 2
A teenage female underwent breast expansion and reconstruction for significant asymmetry. Years later she underwent a second procedure, including prosthesis exchange and contralateral reduction mammaplasty. The patient sustained complications and a perceived poor outcome from the second procedure and filed suit against her surgeon. She subsequently underwent a third surgical procedure to revise the results.
The three stages of surgery were recreated using the computer-enhanced medical animation incorporating the patient's records and photographs. Pictures of the patient's initial pre-operative state were not available; therefore, computer software was used to digitally morph the post-operative photographs to demonstrate her likely appearance.
The medical animation is a dynamic, customized and accurate computer graphic that allows jurors a much greater understanding of the relevant issues of a case. The cost of an animation will vary depending on the length and complexity. However, it should be weighed against the potential costs of an adverse verdict.
Jorge A. Perez, M.D., F.A.C.S. is a board certified plastic surgeon in private practice in Ft. Lauderdale Florida. He serves as an expert in matters of medical malpractice. Dr. Perez has been repeatedly selected among the Castle Connolly (U.S. News & World Report) America's Top Doctors. More information is available at http://www.perezplasticsurgery.com/ or call (954) 351-2200.
