[Injury to the spinal accessory nerve during lymph node biopsy: expert witnesses and evidence-based procedures]. / Verletzung des Nervus accessorius im Rahmen von Lymphknotenexstirpationen - Begutachtung und evidenzbasierte operative Techniken.

INTRODUCTION: Injury to the spinal accessory nerve during lymph node biopsy in the lateral cervical triangle is a dreaded complication. It is disproportionately frequently the basis for medico-legal debates even though an evidence base is lacking. The scientific clarification of meaningful and mandatory measures during the procedure is essential. MATERIALS AND METHODS: A legal database query from 1970 to 2011 was carried out using related keywords. Judgements were examined for expert witnesses, and a literature search regarding expert witnesses was done. The arguments found were verified with respect to evidence. RESULTS: From 1970 to 2011, 18 verdicts were found with 11 claims upheld and seven rejected. Expert witnesses regularly asked for clear preparation of the nerve as well as the requirement of specialist standards, and often used the prima facie argument to show surgeon errors. In contrast, analyses of the literature showed a significant risk of injury during nerve preparation. The need for specialist standards remains, however, with significantly lower demands upon the expertise of the surgeon as described by expert witnesses. DISCUSSION: There was a lack of scientific evidence for special manoeuvers during surgical procedures in the lateral cervical triangle. This prompted experts to ask for scientifically unproved manoeuvers during the procedure. "Eminence-based" expert witnesses with a teaching aptitude still have considerable influence on judicial decisions but are an unnecessary burden regarding the provision of medical treatment.

[Liability of surgeons with respect to injuries to the bile duct during laparoscopic cholecystectomy : Analyses of malpractice litigations in the years 1996-2009]. / Arzthaftung bei Gallengangsverletzungen nach laparoskopischer Cholezystektomie : Analyse der gerichtlichen Urteile der Jahre 1996 bis 2009.

BACKGROUND: Injuries to the bile duct during laparoscopic cholecystectomy are often a cause of malpractice litigations. METHODS: A total of 13 legal verdicts as a result of bile duct injury from 1996 to 2009 were reviewed. Comments on the verdicts and the opinions of expert witnesses were analyzed. RESULTS: Out of 13 claims, 7 were upheld and 6 were rejected. Most expert witnesses from 1996 to 2002 stated that not carrying out a cholangiography and insufficient preparation of the cystic duct constituted a performance below the standard of care expected. Expert witness testimonies from 2004 to 2009, however, regarded injury to the bile duct as predominantly inherent to treatment. CONCLUSION: With the expansion and acceptance of laparoscopic interventions, changes in the results of malpractice litigation have become evident. In contrast to the phase during establishment of the technology, an injury to the bile duct is nowadays judged predominantly as inherent to treatment.