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Figure.  Study Methodology
Study Methodology

Search terms used are noted in the Methods section. BCC indicates basal cell carcinoma; SCC, squamous cell carcinoma.

Table 1.  Sample Characteristics
Sample Characteristics
Table 2.  Rationales for Lawsuits and Decisions
Rationales for Lawsuits and Decisions
Table 3.  Association of Litigation Characteristics With Case Outcome
Association of Litigation Characteristics With Case Outcome
1.
Chandra  A, Nundy  S, Seabury  SA.  The growth of physician medical malpractice payments: evidence from the National Practitioner Data Bank.  Health Aff (Millwood). 2005;31(May)(Suppl Web Exclusives):W5-240-W5-249. doi:10.1377/hlthaff.W5.240PubMedGoogle ScholarCrossref
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Jena  AB, Seabury  S, Lakdawalla  D, Chandra  A.  Malpractice risk according to physician specialty.  N Engl J Med. 2011;365(7):629-636. doi:10.1056/NEJMsa1012370PubMedGoogle ScholarCrossref
3.
Kornmehl  H, Singh  S, Adler  BL, Wolf  AE, Bochner  DA, Armstrong  AW.  Characteristics of medical liability claims against dermatologists from 1991 through 2015.  JAMA Dermatol. 2018;154(2):160-166. doi:10.1001/jamadermatol.2017.3713PubMedGoogle ScholarCrossref
4.
Rayess  HM, Gupta  A, Svider  PF,  et al.  A critical analysis of melanoma malpractice litigation: should we biopsy everything?  Laryngoscope. 2017;127(1):134-139. doi:10.1002/lary.26167PubMedGoogle ScholarCrossref
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D’Souza  LS, Jalian  HR, Jalian  C,  et al.  Medical professional liability claims for Mohs micrographic surgery from 1989 to 2011.  JAMA Dermatol. 2015;151(5):529-532. doi:10.1001/jamadermatol.2014.4495PubMedGoogle ScholarCrossref
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Cameron  MC, Lee  E, Hibler  B,  et al.  Basal cell carcinoma.  J Am Acad Dermatol. 2019;80(2):303-317.Google ScholarCrossref
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Mudigonda  T, Pearce  DJ, Yentzer  BA, Williford  P, Feldman  SR.  The economic impact of non-melanoma skin cancer: a review.  J Natl Compr Canc Netw. 2010;8(8):888-896. http://www.ncbi.nlm.nih.gov/pubmed/20870635. doi:10.6004/jnccn.2010.0066PubMedGoogle ScholarCrossref
8.
LexisNexis. LexisNexis Academic user guide. http://www.lexisnexis.com/documents/academic/academic_migration/LexisNexisAcademicUserGuide-1.pdf. Published 2018. Accessed June 1, 2018.
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Jeffres  MN, Hall-Lipsy  EA, King  ST, Cleary  JD.  Systematic review of professional liability when prescribing β-lactams for patients with a known penicillin allergy.  Ann Allergy Asthma Immunol. 2018;121(5):530-536. doi:10.1016/j.anai.2018.03.010PubMedGoogle ScholarCrossref
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Lindor  RA, Campbell  RL, Pines  JM,  et al.  EMTALA and patients with psychiatric emergencies: a review of relevant case law.  Ann Emerg Med. 2014;64(5):439-444. doi:10.1016/j.annemergmed.2014.01.005PubMedGoogle ScholarCrossref
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Minicucci  RF, Lewis  BF.  Trouble in academia: ten years of litigation in medical education.  Acad Med. 2003;78(10)(suppl):S13-S15. doi:10.1097/00001888-200310001-00005PubMedGoogle ScholarCrossref
12.
Lekovic  GP, Harrington  TR.  Litigation of missed cervical spine injuries in patients presenting with blunt traumatic injury.  Neurosurgery. 2007;60(3):516-522. doi:10.1227/01.NEU.0000255337.80285.39PubMedGoogle ScholarCrossref
13.
Gaither  TW, Copp  HL.  State appellant cases for testicular torsion: Case review from 1985 to 2015.  J Pediatr Urol. 2016;12(5):291.e1-291.e5. doi:10.1016/j.jpurol.2016.03.008PubMedGoogle ScholarCrossref
14.
United States Census Bureau. Geography program: reference maps. https://www.census.gov/geography.html. 2018. Accessed July 1, 2018.
15.
Bureau of Labor Statistics. Consumer Price Index inflation calculator: databases, tables, and calculators. https://www.bls.gov/data/inflation_calculator.htm. Accessed June 20, 2018.
16.
Bal  BS.  An introduction to medical malpractice in the United States.  Clin Orthop Relat Res. 2009;467(2):339-347. doi:10.1007/s11999-008-0636-2Google ScholarCrossref
17.
Schaffer  AC, Jena  AB, Seabury  SA, Singh  H, Chalasani  V, Kachalia  A.  Rates and characteristics of paid malpractice claims among US physicians by specialty, 1992-2014.  JAMA Intern Med. 2017;177(5):710-718. doi:10.1001/jamainternmed.2017.0311PubMedGoogle ScholarCrossref
18.
Herzer  KR, Pronovost  PJ.  Physician motivation: listening to what pay-for-performance programs and quality improvement collaboratives are telling us.  Jt Comm J Qual Patient Saf. 2015;41(11):522-528. doi:10.1016/S1553-7250(15)41069-4PubMedGoogle ScholarCrossref
19.
Haynes  AB, Weiser  TG, Berry  WR,  et al; Safe Surgery Saves Lives Study Group.  A surgical safety checklist to reduce morbidity and mortality in a global population.  N Engl J Med. 2009;360(5):491-499. doi:10.1056/NEJMsa0810119PubMedGoogle ScholarCrossref
20.
Shah  VV, Kapp  MB, Wolverton  SE.  Medical malpractice in dermatology—part 1: reducing the risks of a lawsuit.  Am J Clin Dermatol. 2016;17(6):593-600. doi:10.1007/s40257-016-0223-3PubMedGoogle ScholarCrossref
21.
Wilbanks  BA, Geisz-Everson  M, Boust  RR.  The role of documentation quality in anesthesia-related closed claims.  Comput Inform Nurs. 2016;34(9):406-412. doi:10.1097/CIN.0000000000000270PubMedGoogle ScholarCrossref
22.
Albert  MR, Weinstock  MA.  Keratinocyte carcinoma.  CA Cancer J Clin. 2003;53(5):292-302. doi:10.3322/canjclin.53.5.292PubMedGoogle ScholarCrossref
23.
Skarupski  KA, Gross  A, Schrack  JA, Deal  JA, Eber  GB.  The health of America’s aging prison population.  Epidemiol Rev. 2018;40(1):157-165. doi:10.1093/epirev/mxx020PubMedGoogle ScholarCrossref
24.
Perry  DM, Barton  V, Alberg  AJ.  Epidemiology of keratinocyte carcinoma.  Curr Dermatol Rep. 2017;6(3):161-168. doi:10.1007/s13671-017-0185-6PubMedGoogle ScholarCrossref
25.
Etcoff  NL, Stock  S, Haley  LE, Vickery  SA, House  DM.  Cosmetics as a feature of the extended human phenotype: modulation of the perception of biologically important facial signals.  PLoS One. 2011;6(10):e25656. doi:10.1371/journal.pone.0025656Google Scholar
26.
Jalian  HR, Jalian  CA, Avram  MM.  Increased risk of litigation associated with laser surgery by nonphysician operators.  JAMA Dermatol. 2014;150(4):407-411. doi:10.1001/jamadermatol.2013.7117PubMedGoogle ScholarCrossref
27.
Clark  JR.  Defensive medicine.  Air Med J. 2015;34(6):314-316. doi:10.1016/j.amj.2015.08.004PubMedGoogle ScholarCrossref
28.
High  WA.  Malpractice in dermatopathology: principles, risk mitigation, and opportunities for improved care for the histologic diagnosis of melanoma and pigmented lesions.  Clin Lab Med. 2008;28(2):261-284, vii. doi:10.1016/j.cll.2007.12.006PubMedGoogle ScholarCrossref
29.
Huntington  B, Kuhn  N.  Communication gaffes: a root cause of malpractice claims.  Proc (Bayl Univ Med Cent). 2003;16(2):157-161. doi:10.1080/08998280.2003.11927898PubMedGoogle ScholarCrossref
30.
Coury  C, Kelly  B.  Prison dermatology: experience in the Texas Department of Criminal Justice dermatology clinic.  J Correct Health Care. 2012;18(4):302-308. doi:10.1177/1078345812456365PubMedGoogle ScholarCrossref
31.
Thomas Cohen  BH, Hughes  KA. Bureau of Justice statistics special report: medical malpractice insurance claims in seven states, 2000-2004. https://www.bjs.gov/content/pub/pdf/mmicss04.pdf. Published March 2007. Accessed January 31, 2019.
32.
Lydiatt  DD.  Medical malpractice and cancer of the skin.  Am J Surg. 2004;187(6):688-694. doi:10.1016/j.amjsurg.2003.10.018PubMedGoogle ScholarCrossref
Original Investigation
May 15, 2019

Characteristics of State and Federal Malpractice Litigation of Medical Liability Claims for Keratinocyte Carcinoma, 1968 to 2018

Author Affiliations
  • 1Department of Dermatology, Case Western Reserve University School of Medicine, Cleveland, Ohio
  • 2Department of Dermatology, University Hospitals Cleveland Medical Center, Cleveland, Ohio
  • 3Case Western Reserve University School of Law, Cleveland, Ohio
JAMA Dermatol. 2019;155(7):812-818. doi:10.1001/jamadermatol.2019.0430
Key Points

Question  What are the characteristics of state and federal medical malpractice lawsuits involving keratinocyte carcinoma?

Findings  In this review of 83 keratinocyte carcinoma–related malpractice liability claims, 62 (75%) were decided in favor of the defendants, including dermatologists, family medicine physicians, otolaryngologists, oncologists, and other health care professionals from more than 15 specialties. The most common causes of litigation were failure to diagnose, misdiagnosis, and delay in treatment; in cases won by the plaintiff, the median and mean monetary payouts were $179 654 and $909 801, respectively.

Meaning  Characterizing malpractice litigation claims for keratinocyte carcinoma may be important in developing interventions to minimize risk for patients and health care professionals.

Abstract

Importance  The prevalence of keratinocyte carcinoma (KC) exceeds that of all other malignant neoplasms combined. Despite the steady rise of payments for medical malpractice liability claims over time, data regarding the characteristics of malpractice litigation for KC are scarce.

Objective  To identify state and federal appellate medical malpractice liability cases for KC and determine the factors associated with the verdicts.

Design, Setting, and Participants  This retrospective review of KC-related malpractice litigation under state or federal jurisdiction reviewed the LexisNexis Academic database of state and federal cases, legal reviews, and case law. All appellate medical malpractice cases at the state and federal levels involving basal cell carcinoma (BCC) or squamous cell carcinoma (SCC) from January 1, 1968, through December 31, 2018, were identified.

Main Outcomes and Measures  Demographic characteristics of the cases and plaintiffs, verdict, health care specialty of the defendant, setting of the litigation, rationale for the lawsuit and verdict, factors associated with the case outcome, and monetary payout in cases won by the plaintiff.

Results  In total, 83 cases were included in our analysis (34 BCC cases and 49 SCC cases; 47 [57%] male plaintiffs). Sixty-two cases (75%) were decided in favor of the defendant. More KC-related malpractice cases were won by defendants in more recent years than were won by plaintiffs (mean year, 2004 [SD, 11 years] vs 1998 [SD, 14 years]; P = .03). Twenty-five cases (30%) each occurred in the Northeast and the South, and 45 (54%) involved private practices. Most cases involved KCs occurring on the face, head, and/or neck (39 [47%]), the genitalia (22 [27%]), or the extremities (15 [18%]). More than half of defendants were dermatologists (19 [23%]), family medicine physicians (15 [18%]), or oncologists (8 [10%]). Jurisprudence for KC-related malpractice cases most often occurred at the state level (49 [59%]). The most common causes of litigation were failure to diagnose (18 [22%]), misdiagnosis (18 [22%]), and delay in treatment (11 [13%]). More female than male plaintiffs won their malpractice cases (11 of 35 [31%] vs 5 of 43 [12%]; P = .03). More cases involving SCC than BCC led to a decision favoring the plaintiff (13 of 47 [28%] vs 3 of 31 [10%]; P = .05). In cases won by the plaintiff, the median monetary payout was $179 654 and the mean payout was $909 801 (range, $11 537-$5 320 161).

Conclusions and Relevance  This study sheds light on the characteristics and settings of KC malpractice litigation claims, which is vital information for discovering potential areas of quality improvement, patient safety initiatives, and education for patients and health care professionals.

Introduction

Payments for medical malpractice liability claims have steadily risen over time, which parallels the increasing cost of health care in the United States.1 Although dermatologists are at a lesser risk of facing legal claims than many other specialists, 75% of dermatologists are expected to face a legal claim by the age of 65 years.2 A recent analysis of malpractice cases involving dermatologists from 2006 to 2015 found that the primary defendants named in 1.2% of all malpractice claims were dermatologists, with 28.7% of the cases decided in favor of the plaintiff and a mean indemnity payment of $238 145.3

Few studies have assessed malpractice litigation for specific dermatologic conditions. A review of 80 cases of malpractice litigation involving melanoma4 found that melanoma malpractice litigation involves numerous specialties (including dermatology, pathology, family medicine, and surgical specialties) and that approximately half of melanoma malpractice cases resulted in financial settlement. In addition, a 2015 analysis of 42 malpractice claims for Mohs micrographic surgery5 found only 1 case in favor of the plaintiff.

Basal cell carcinoma (BCC) and squamous cell carcinoma (SCC) are the most common malignant neoplasms worldwide, and their prevalence exceeds that of all other malignant neoplasms combined.6 The incidence of BCC and SCC (together termed keratinocyte carcinoma [KC]) has continuously grown at a mean rate of 4% to 8% annually in the United States, placing a significant economic burden on the US health care system.7 However, to our knowledge, no information currently exists regarding medical liability claims for KC. We need to better characterize risks associated with litigation to improve the quality of patient care and avoid preventable malpractice cases.

The primary objective of this retrospective exploratory study was to characterize KC-related state and federal appellate medical malpractice cases, including outcomes and awards, alleged factors in the litigation, and rationales behind the verdicts. We further aimed to distinguish the characteristics of BCC and SCC appellate medical malpractice cases, examine differences in malpractice cases by health care professional specialty for those involved in care for KC, and determine which factors are associated with case outcome.

Methods
Data Collection

We used the LexisNexis Academic legal database through institutional subscription.8 This database contains all appellate state and federal cases since January 1790, as well as source material (in the form of legal reviews and case laws) from all 50 states. If one of the parties (plaintiff or defendant) appeals the decision of a malpractice case at a lower court, the cases move to the state-level court. All such cases are recorded in the LexisNexis database, as well as cases in which the federal government was the defendant (eg, prison dermatology, Department of Veterans Affairs hospitals, federally qualified health centers, or military hospitals). LexisNexis was specifically chosen because it includes published and unpublished decisions of state and federal cases and all Supreme Court decisions, is one of the most commonly used primary databases in professional legal research, and, as such, informs hospital and health system risk management decisions.8 These methods have been used previously to evaluate litigation of appellate cases in several contexts by using the LexisNexis database.9-13 This study was deemed by the University Hospitals institutional review board to meet the definition of research exempt from institutional review board review and from the informed consent requirement.

An outline of the study methods is given in the Figure. We first queried the database for cases at the federal and state levels using the term medical malpractice and basal cell and then medical malpractice and squamous cell. We then searched for medical within 10 of malpractice and squamous within 10 of cell as well as medical within 10 of malpractice and basal within 10 of cell. These terms expanded the search to include cases with these search terms within a proximity of 10 words of each other (eg, basal within 10 words of cell) as per LexisNexis search logic. We also searched for medical malpractice and keratinocyte and medical malpractice and skin cancer excluding melanoma, which yielded no additional unique search results for BCC or SCC. We then reviewed each case individually and removed duplicates. Cases that were filed against a health care professional, involved a malpractice suit, reported a final decision, and involved primarily SCC or BCC were included. Cases that were filed against nonmedical professionals, that concerned a primary disease that was not SCC or BCC (eg, heart failure with incidental finding of SCC), or that did not report a decision were excluded. All cases were then screened for completion, and ongoing cases were excluded from analysis.

The included cases were assessed for the type of disease (SCC or BCC), year of action, sex of the plaintiff, location of action (state), jurisdiction of the case (state or federal), rationale for the lawsuit, anatomical site of the SCC or BCC, decision (in favor of the plaintiff, defendant, or court-ordered settlement), health care professional specialty, health care setting, rationale for the decision, and dollar amount of monetary payout (for cases won by the plaintiff). Categories for lawsuit and decision rationale were determined during review of the cases after collection based on general trends in rationales. The location of action was then further categorized into region (Northeast, South, Midwest, Pacific, or Mountain) as per the US Census Bureau guidelines.14 Anatomical sites were categorized as the extremities; the genitalia; the trunk (chest and back); the face, head, and/or neck; or an unspecified site. Monetary payouts were adjusted for inflation and converted to October 2018 US dollars via the Consumer Price Index of the Bureau of Labor Statistics.15

Each case varied in regard to how much detail and background were provided. After review of the reasons and decisions for each case, rationales for lawsuits were categorized as failure to perform a biopsy and diagnose, postprocedural complication, failure to prevent disease (eg, failing to provide sunscreen or long-sleeve shirts to patients in prison settings), failure to fully treat (leading to recurrence), delay in treatment, causation of SCC or BCC (eg, unnecessary exposure to radiation), procedural complication, misdiagnosis of SCC or BCC as a different disease, misdiagnosis of a different disease as SCC or BCC, failure to obtain informed consent, and failure to follow up for metastases in other tissue. In cases won by the plaintiff, rationale for the decision was categorized as failure to meet the standard of care (including causation of disease) or an issue of informed consent. In cases won by the defendant, rationale for the decision was categorized as no evidence of deliberate indifference, inability to prove negligence, no effect (ie, although a mistake was made, no harmful effect to the patient occurred), burden of treatment was on the patient (eg, prescriptions were provided but not picked up), standard of care was correctly followed, procedural issue (eg, no witness), or statute of limitations issue.

Statistical Analysis

Summary statistical analysis was performed with proportions and frequencies, and unadjusted exploratory associations were tested between risk factor and outcome variable (case outcome) using a χ2 test or a Fisher exact test (for all categorical variables) and a paired, 2-tailed t test (for year). Association of health care professional specialty with monetary payout was assessed using analysis of variance. Owing to limited sample size, these analyses were exploratory, and post hoc testing or evaluation of significance for specific pairwise comparison was not performed. Two-sided P < .05 was considered statistically significant for all analyses. All analyses were completed in SAS, version 9.4 (SAS Institute, Inc).

Results

In total, 83 cases were included in our study (34 BCC cases and 49 SCC cases). The date of decision for all cases ranged from January 1, 1968, through December 31, 2018 (median year, 2007). Sample characteristics for each case are provided in Table 1. Forty-seven plaintiffs (57%) were male. Equal numbers of cases were from the Northeast and South (25 [30%]). Forty-nine cases (59%) were under state jurisdiction. The most common anatomical sites were the face, head, and/or neck (39 [47%]); the genitalia (22 [27%]); and the extremities (15 [18%]). With regard to case verdicts, most cases were decided in favor of the defendant (62 [75%]), 16 verdicts (19%) were in favor of the plaintiff, and 5 (6%) ended with a court-ordered settlement. The most common health care professionals named in the malpractice lawsuits were general dermatologists (19 [23%]), family medicine physicians (15 [18%]), and oncologists (8 [10%]). The most common settings were private practice (45 [54%]), prisons (23 [28%]), and federally qualified health centers (6 [7%]). Of cases that occurred in prisons, 5 (22%) took place in federal prisons.

The rationales for lawsuits and verdicts are provided in Table 2. The most common rationales for lawsuits were failure to perform a biopsy and diagnose (18 [22%]) and delay in treatment (11 [13%]). These reasons were followed by failure to obtain informed consent (9 [11%]); misdiagnosis of SCC or BCC as another disease (9 [11%], most often leading to metastasis); and misdiagnosis of another disease as SCC or BCC (9 [11%], most often leading to unnecessary procedures such as amputation). Among the 78 case verdicts in favor of the plaintiff or the defendant, the most common rationales for verdicts in 62 cases won by the defendant were that the standard of medical care was followed (22 [35%]), medical error had no effect on outcome (9 [15%]), and no deliberate indifference occurred (9 [15%]).

Significantly more female plaintiffs won their malpractice cases (11 of 35 [31%]) than male plaintiffs (5 of 43 [12%]; P = .03) (Table 3). In addition, significantly more cases involving SCC than BCC led to decisions favoring the plaintiff (13 of 47 [28%] vs 3 of 31 [10%]; P = .05). Cases won by plaintiffs were most often set in private practice (8 of 16 [50%]), a federally qualified health center (3 of 16 [19%]), or a prison (2 of 16 [13%]). Cases won by defendants were also most often set in private practice (35 of 62 [56%]), a prison (20 of 62 [32%]), or a federally qualified health center (3 of 62 [5%]). There was no association between jurisdiction and case verdict (10 of 16 cases [63%] won by the plaintiff and 37 of 62 cases [60%] won by the defendant took place at the state level; P = .84).

The mean (SD) year for cases decided in favor of the defendant was 2004 (11.02), whereas the mean (SD) year for cases decided in favor of the plaintiff was 1998 (13.56). On average, KC-related malpractice cases won by defendants occurred more recently than those won by plaintiffs (mean year, 2004 [SD, 11 years] and 1998 [SD, 14 years], respectively; P = .03).

In the 16 cases won by the plaintiff, the monetary payout ranged from $11 537 to $5 320 161, with a median of $179 654 and mean of $909 801. Health care professional specialty was associated with monetary payout (P = .03); cases won against a pathologist ($5 320 161), podiatrist ($811 183), or obstetrician/gynecologist ($1 805 271) had the largest payouts, whereas those won against a general dermatologist ($225 765) or a plastic surgeon ($52 435) had the lowest payouts.

Discussion

In this exploratory study of state and federal appellate litigation data for KC from 1986 through 2018, we found that most cases were decided in favor of the defendant (75%) and that more KC malpractice case verdicts were won by defendants in more recent years than were won by plaintiffs. Most plaintiffs in KC-related malpractice cases were male (57%), from the Northeast (30%) or the South (30%), treated in the private practice setting (54%), and alleged malpractice regarding SCCs or BCCs on their face, head, and/or neck (47%). Most defendants in KC-related malpractice cases were dermatologists (23%), and the jurisdiction for most cases was at the state level (59%). Misdiagnosis (22%) and failure to perform a biopsy and diagnose (22%) were the most common rationales for lawsuits, and closely followed by delays in treatment (13%). Whether or not the standard of care was met was the most important deciding factor in the verdicts for these malpractice cases (28%).

Ultimately, most of the cases were decided in favor of the defendants. Unlike in many other countries, medical malpractice in the United States is most often under the authority of individual state governments. The burden of proof is on the patient to show that (1) the defendant had the burden of care, (2) substandard care was provided, and (3) the substandard medical care resulted in an injury.16 The plaintiff must file a case within a legally prescribed period known as the statute of limitations (varying by state). A common reason for verdicts favoring the defendant in our study was that the plaintiff failed to meet the statute of limitations, which reflects the importance of this statute in malpractice cases.

This relatively high burden of evidence and timeliness placed on the patient further supports our finding that KC malpractice case verdicts were more often won by defendants than plaintiffs. The downward trend in plaintiff-favoring verdicts found in our study parallels the net reduction in paid claims for dermatologists and all specialists over time.3,17 Increased implementation of quality improvement interventions (eg, checklists and time-outs) and electronic medical records may play a role in decreasing paid claims for dermatologic malpractice litigation over time.18-21

Male plaintiffs predominated among the cases (57%). The high proportion of male plantiffs may partially be explained by the increased relative incidence of KC among men compared with women.22 Another possible explanation may be that 28% of the cases in this study occurred in the prison setting, where the population is overwhelmingly male.23 A large proportion of cases that led to malpractice litigation occurred in the face, head, and/or neck; this finding reflects the increased incidence of KC on sun-exposed areas and the cosmetic importance of facial health and appearance, which may lead to an increased likelihood of malpractice litigation for KCs that affect the face.5,24,25

We identified more than 15 specialties involved in malpractice litigation involving KCs and found significant differences in monetary payout by health care professional specialty in cases won by the plaintiff. Although more nondermatologists are performing dermatologic procedures, increased risk of litigation has previously been associated with laser surgery by nonphysician operators compared with dermatologists.26 Our findings underscore the importance of timely detection of metastases and establishing a relationship among dermatologists, primary care professionals, and other specialists to provide more comprehensive care for patients with KC.

The most common reason for KC malpractice litigation was alleged failure to perform a biopsy and diagnose the lesion. These findings may lead to an increase in the practice of defensive medicine among health care professionals evaluating cutaneous lesions, including a lower threshold for biopsy and increased expenditure where biopsy may not be indicated.27 The next most common reasons for KC malpractice litigation were delay in treatment, misdiagnosis, and failure to obtain informed consent. In our study, misdiagnosis of KC as other dermatologic conditions (eg, warts) most often led to a delay in treatment and resulting metastases. Misdiagnosis of other conditions as KC most often led to unnecessary procedures such as amputations. Eliciting a thorough history and consulting other specialists when necessary is critical for avoiding misdiagnosis and ensuring timely and appropriate treatment. Full documentation is imperative to improve patient care and minimize the likelihood of malpractice litigation, especially with regard to documenting the results of interdepartmental consultation with other health care professionals.28 Establishing strong rapport with the patient and developing effective communication methods have also been shown to decrease the likelihood of malpractice lawsuits.29

Of the 23 cases investigated in our study that occurred in the prison setting, only 2 received a verdict in favor of the plaintiff. Plaintiffs in this setting most often alleged delay in provision of preventive tools such as sunscreen and long-sleeve shirts as well as deliberate indifference to skin lesions through lack of referral to dermatologists by general medical professionals in the prison. Very little information exists regarding the practice of prison dermatology; additional research is necessary to further characterize the epidemiology of dermatologic conditions in prisons and the availability of dermatologic care.30

Limitations

This study has several key limitations. The primary limitation is that LexisNexis only contains cases that establish stare decisis (precedent for future judges to follow) at the state and federal levels. This restriction means that cases that were not tried in state or federal court, cases handled via out-of-court settlements, cases that underwent third-party arbitration via an insurance company, and cases that were appealed at the district level were not included in this data set. Most medical malpractice cases (approximately 93%) are resolved before trial, limiting the number of cases eligible for our study.31 Beyond this, each case varied by the level of detail provided and the amount of medical information regarding the SCC or BCC. State and federal appellate cases that were appealed for any number of reasons (including technical questions, such as those involving due process) were included in LexisNexis. The cases evaluated did not include official medical records and could not be verified for accuracy. We also had a relatively small sample size with which to assess significance, especially with regard to cases won by plaintiffs and monetary payout. As such, analyses in this study are exploratory in nature. The search terms may have excluded cases that did not explicitly specify BCC or SCC. The goal of our study was to evaluate state- and federal-level appellant cases that specified KC; as such, although the cases evaluated in this study specified BCC or SCC, cases that did not specify BCC or SCC (eg, cases that only used the term skin cancer) may not have been included in this study. However, a previous evaluation of the Westlaw database (a similar primary database used in professional legal research)32 found 25 BCC and 20 SCC cases from 1986 to 2001, which is similar to the number of cases in our study during that period.

Conclusions

To our knowledge, this was the first large-scale analysis of KC-related malpractice litigation. This study sheds light on the characteristics and settings of KC malpractice litigation claims, which is vital for discovering areas of potential quality improvement, patient safety initiatives, and education for patients and health care professionals. Most malpractice cases resulted from failure to diagnose and treat. Further research should evaluate the efficacy of initiatives such as closer coordination among dermatologists, general health care professionals, and other specialists in minimizing risks to patients and those who treat them.

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Article Information

Accepted for Publication: February 15, 2019.

Corresponding Author: Raghav Tripathi, MPH, Department of Dermatology, University Hospitals Cleveland Medical Center, Lakeside 3500, 11100 Euclid Ave, Cleveland, OH 44106 (raghav.tripathi@case.edu).

Published Online: May 15, 2019. doi:10.1001/jamadermatol.2019.0430

Author Contributions: Mr Tripathi had full access to all the data in the study and takes responsibility for the integrity of the data and the accuracy of the data analysis.

Acquisition, analysis, or interpretation of data: Tripathi, Ezaldein, Rajkumar, Scott.

Drafting of the manuscript: Tripathi, Ezaldein, Rajkumar.

Critical revision of the manuscript for important intellectual content: Tripathi, Ezaldein, Bordeaux, Scott.

Statistical analysis: Tripathi.

Obtained funding: Tripathi.

Administrative, technical, or material support: Tripathi, Scott.

Supervision: Ezaldein, Bordeaux, Scott.

Conflict of Interest Disclosures: None reported.

Funding/Support: This study was supported by the Brian Werbel Memorial Fund through the Case Comprehensive Cancer Center (Mr Tripathi).

Role of the Funder/Sponsor: The funding source had no role in the design and conduct of the study; collection, management, analysis, and interpretation of the data; preparation, review, or approval of the manuscript; and decision to submit the manuscript for publication.

References
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2.
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