In last month’s article, “Scientific Analysis for Medical Liability Claims,” Coverys’ Robert Hanscom, vice president of business analytics, and Lisa Simm, manager of risk management, presented the methodology the insurer utilizes to analyze medical professional liability (MPL) claims. This article features an analysis of Coverys’ review of 474 closed orthopaedic claims from 2013–2017.

The analysis revealed that the top allegation category for claims is surgery/procedure-related (62 percent of the claims, 64 percent of the indemnity dollars) (Fig. 1). This is not surprising, as orthopaedics is a highly technical area of medicine, requiring sharp skills by surgeons who perform complex procedures. However, what is startling is that nearly 90 percent of the procedure-related MPL claims allege negligent performance. In other words, the plaintiffs are claiming that the skill level of the surgeons—as manifested by their role in the procedure—was insufficient, inadequate, or below standard. Are our skills really that poor? The perception of inferior skills is probably the result of ineffective physician-patient communication and the physicians’ inability to ensure appropriate patient expectations.

Given the extensive media coverage of health issues, patient expectations may be higher than ever. In 2015, Danny Lee, MD, a surgeon in Hong Kong, wrote: “Technological advancements and media coverage of successful cases invariably contribute to higher expectations among patients. When these expectations—realistic or unrealistic—are not met, patients may feel let down.”

So, what is behind the high levels of performance-related allegations in orthopaedics? Are surgeons now being sued for what used to pass for normal risks associated with any complex surgical procedure, or is the answer more complex?

When analyzing potential causation factors, the following questions or “signals” emerge:

• Are skill levels by surgeons being adequately maintained by the surgeons themselves and then routinely monitored by their peers and by the facilities where they perform surgery?
• Intraoperative technical misadventures can be reflective of both technical skill and communication issues. Is there experiential training available to help improve and refine surgical skills, as well as communication and team-based skills? What simulation-based programs have been proven effective in impacting orthopaedic surgical performance?
• Is there a thorough approach to preoperative assessments? A complex patient with multiple comorbidities will more likely experience intra- and postoperative complications that could challenge even the best of surgeons.
• Complex surgical procedures are increasingly performed on complex patients. Proper patient selection for elective ambulatory surgery influences postoperative outcomes. Are preoperative assessment criteria assisting with this decision making?
• Is the operating room (OR) environment conducive to complicated surgical procedures? Are surgeons distracted by any of the following?
  • ongoing noise (conversations, music, cell phone activity) during procedures
  • frequent interruptions, including changes of shift by OR personnel during lengthy surgeries
  • equipment failures, malfunctions, or substitutions
  • Are equipment and device manufacturer warnings shared with all members of the surgical team?
  • lack of needed surgical supplies, resulting in delays
  • poor team dynamics—surgeons paired with OR nurses, physician assistants, and surgical technicians with whom they have never worked and who may know very little about what is required of them in specific surgical procedures
  • Is the shift from the traditional inpatient OR environment to ambulatory surgical centers increasing the potential for adverse outcomes? Is the ambulatory surgery setting as well- equipped, staffed, and prepared for the performance of orthopaedic procedures and postoperative recovery?

Mr. Hanscom and Ms. Simm have shared Coverys’ data, which provide a snapshot of the risk-management vulnerabilities in their orthopaedic claims. Although technical skill or performance issues are the most dominant (29 percent), other issues pervade. Of note is the clinical judgment category, which ranks second at 23 percent (Fig. 2). Delving deeper into clinical judgment, Coverys data show that all phases of orthopaedic surgical care—pre-, intra-, and postoperative—are affected (Fig. 3).

Summary

Despite their inherent limitations, MPL data are uniquely valuable in that they provide key signals where providers and facilities can actively improve care. They point to where problems have occurred in the past and how those issues may have been at the root of preventable problems. As these events are analyzed, pressing questions should be posed daily. Are these factors still present? Do you worry that the same adverse patient outcomes will recur? Are there solutions that can and should be instituted to effectively mitigate risk and improve the reliability of care?

If vulnerabilities still exist, responsive actions can and should be prioritized, particularly if those factors historically have been at the root of high-severity injury outcomes. Orthopaedic surgical groups should consider the following key best practices:*

• Have a robust informed consent process, with protocols, to fully educate patients on both risks and possible options to consider. Consistently document those discussions.
• Demonstrate evidence of consistent application of a Surgical Safety Checklist. Ensure that direct observation confirms the reliable use of this checklist.
• Institute assistive technology to aid in surgical counting and detection to more aggressively prevent retained foreign objects.
• Implement simulation-based training and education that requires surgeons, residents, and fellows to practice their surgical skills on an ongoing basis. Use such simulation-based training to facilitate team-based communication in the OR.
• Establish communication triggers that enable residents, nurses, anesthesiologists, and attendings to alert others of issues, particularly in the postoperative/recovery phase.
• Implement structured pre- and post-surgical team briefings to ensure optimal communication.
• Have well-defined communication protocols for handoffs when transitions of care occur with surgical patients.
• Examine the OR environment to decrease unnecessary distractions.
• Develop uniform standards for surgeons requesting to perform new procedures or use new devices. Make sure that the standards ensure surgical proficiency.
• Lastly and critically important, implement an orthopaedic surgical review process to support quality improvement efforts.

Many of these best practices are tenets from TeamSTEPPS training that AAOS previously offered to fellows.

Michael Marks, MD, MBA, is an orthopaedic surgeon; editor of the AAOS Now Medical Liability Committee column; senior medical director at Relievant Systems; a member of the AAOS Patient Safety Committee; a trainer for the AAOS Communications Skills Mentoring Program; and a consultant with KarenZupko & Associates, Inc. He can be reached at mmarks1988@gmail.com.

Reference:

1. Medical Protection: Patient Expectations: A Surgeon’s Perspective. Available at: medicalprotection.org/malaysia/casebook-may-2015/patient-expectations-a-surgeons-perspective. Accessed December 17, 2018.