Litigation associated with the use of extracorporeal membrane oxygenation

Abstract

Introduction

Extracorporeal membrane oxygenation (ECMO) is a high-risk treatment but the legal risk surrounding its use is unknown.

Methods

Retrospective review of the Westlaw legal database was used to identify eligible cases. The reason for litigation (directly related to ECMO or not directly related to ECMO) and other case details were abstracted. Descriptive statistics were calculated.

Results

A total of 28 cases were identified, nine related to ECMO and 19 not related to ECMO. Eight cases were settled out of court, while seven had a plaintiff verdict and 13 had a defense verdict. The median payment to the plaintiff in cases related to ECMO was $1,704,500 (range: $400,000 to $100,395,901; IQR $436,500 to $27,318,225) and for cases not related to ECMO was $4,275,812 (range: $375,000 to $7,700,000; IQR $1,500,000 to $6,500,000). The most common reason for litigation in the ECMO-related group was for access to ECMO (failure to transfer and delay or failure to offer ECMO) while the most common reason for litigation in the non-ECMO related group was perinatal complications. Virtually all patients (27 of 28) suffered permanent harm or death.

Conclusions

Although a high-risk technology, cases alleging harm attributable to ECMO were rare (2 of 28) and both involved catastrophic technical errors. Failure or delay in offering ECMO was a more common reason for litigation. Settled and verdict damages were high, suggesting cases involving ECMO are at risk for litigation, although patients who require ECMO are by definition critically ill and are at high risk for poor outcomes, regardless of ECMO therapy.