AAOS Now

Published 3/1/2008
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Paul A. Manner, MD; Elliot G. Budashewitz, JD

Orthopaedic liability: The plaintiff’s perspective

An Interview with a Personal Injury Lawyer

Editor’s Note: One aspect of medical liability that frequently is not fully explored is the perspective of the plaintiff’s attorney. In the interests of closing the gap between the orthopaedic surgeon and the plaintiff, Paul Manner, MD, a member of the AAOS Medical Liability Committee, asked Elliot Budashewitz, a personal injury attorney, to comment on and respond to several questions and concerns.

Paul Manner, MD: Many physicians feel that lawyers will go after any case with a bad outcome. Lawyers point to data showing that few cases where malpractice occurs ever get to court. When a patient comes to see you, how do you decide whether to take the case?

Elliot Budashewitz: The first aspect I consider is whether the patient has a correctible problem—was the bad outcome something that can be fixed? I’m not going to take a case unless there’s residual injury—or a significant loss of function.

I also decide whether the outcome is a known risk of the procedure that was articulated to the patient. Doctors really do need to be clearer in getting informed consent; boilerplate forms aren’t very helpful. How can the same form apply to a hernia repair, a knee replacement, or open-heart surgery? The consent form needs to be very specific to the patient and to the procedure—and it needs to be understandable.

I also look at the doctor’s legal history. Every legal proceeding is in the public record. If the defendant has been sued multiple times, I’ll look carefully at the case. The patient’s history is also important. For example, diabetic patients have a higher risk of infection after surgery. Did the doctor explain that? Again, informed consent for a 75-year-old diabetic patient is not the same as informed consent for a 22-year-old football player.

Lastly, I look at what the malpractice means to the patient. Failure to diagnose cancer in a 40-year-old entrepreneur is very different than failure to diagnose in an 80-year-old retiree. The younger person faces a potentially disastrous loss of income, a loss to the family, a loss of years of life. Also, the younger patient has a much better chance of benefiting from treatment, so failure to diagnose means that person lost the opportunity to get proper treatment. In a malpractice case that seeks compensation for damages, the loss of income and function are big factors.

Litigating is very expensive for the plaintiff’s attorney, so I need to go to a jury with a good case that involves significant financial loss and/or long-term disability.

Dr. Manner: When you examine the patient’s chart, what do you look for? Are you interested in specific elements of documentation?

Mr. Budashewitz: I look at a couple of things. First, was the potential malpractice affirmative (did the doctor do something wrong?) or was it failure to diagnose or treat? A key element in failure to diagnose is whether the care answered the patient’s complaints or presenting

symptoms.

For example, a week after surgery, a woman who was treated for a trimalleolar ankle fracture calls the surgeon’s office complaining of severe pain. She describes the wound as red, and the doctor phones in a prescription for antibiotics. Later, she calls again because the wound is so sensitive she can’t put a sheet on her leg. The surgeon tells her to get an X-ray, but when she comes to the office without it, she’s sent home without being examined. The pain continues, and when she goes to physical therapy (PT), the therapist sends her to the emergency department. The wound is septic and the patient dies a few days later.

Maybe this was inevitable, but the doctor clearly failed to diagnose and treat this patient. If she had been examined and treatment started, this would not be malpractice, even if the outcome was unchanged.

Remember, the patient’s record isn’t just the operative surgeon’s chart; it includes the hospital chart, the referring physician’s chart, the PT notes, anything the attorney can find. If the dates or charts don’t agree, a big red flag goes up. If the internist’s records say “Patient complains of severe postop ankle pain, sending patient back to operating surgeon” and the defendant’s chart says nothing at all, it looks very suspicious.

Other red flags include the following:

  • A change in the chart. If the chart shows evidence of changes, such as different ink, different handwriting, or a six-line paragraph stuffed into two lines at the end of a page, credibility becomes an issue. If the orthopaedic surgeon’s notes are markedly different from the referring physician’s or the therapist’s notes, credibility becomes a factor. Look like you might be lying and you’ve lost any advantage in front of the jury.
  • An atypical procedure or something that’s not usually done, such as knee revision surgery because the hospital didn’t have the correct size implant on hand.
  • Surgery on the wrong side or site. This is totally preventable, totally straightforward, and totally indefensible.

Dr. Manner: When do you decide to go forward with a case? When would you decide to drop it?

Mr. Budashewitz: After taking on a client, I submit the chart to an expert. Because litigation is so costly, I don’t want an expert who makes stuff up. If my expert says it’s not malpractice, the defendant’s expert will probably say the same thing.

Dr. Manner: How credible is an expert who comes in over and over again—a so-called “gun for hire”? Why do attorneys continue to use the same doctors as witnesses?

Mr. Budashewitz: Some doctors do a lot of legal work. Most have impeccable credentials—good medical school, good residency, board-certified. They also look good in front of a jury. They don’t react to lawyer’s questions defensively, they know how to testify. They answer the question they’ve been asked; they don’t volunteer information that’s not asked for; they know how to stop talking. Even if the witness is testifying for the 20th time that year, the jury is seeing him or her only once.

The best witnesses provide a balanced viewpoint. As an attorney, I’ll ask about the weaker parts of my case first, so the defendant’s counsel can’t bring it up.

Being likeable goes a long way. A likeable expert makes a big difference. An expert who is pompous, longwinded, or defensive is not going to help.

Another thing to keep in mind: the insurance company and its counsels are not necessarily on the defendant’s side. They don’t care whether the patient is hurt or whether the doctor is good or bad. They’re looking at cost and they don’t want to give out money. If a settlement is easier and less costly, the company may push a settlement, regardless of what it means to the defendant or to the plaintiff.

Dr. Manner: If the case is questionable, when do you drop it?

Mr. Budashewitz: I’ll drop a case for the following reasons:

  • The value of the case is low. If we’re only talking about a few thousand dollars, it’s not worth pursuing.
  • The expert review is borderline. If little evidence of harm or of a clear failure in care exists, I’ll advise the client to drop the case.
  • A plan for future treatment to correct the problem exists, or there isn’t a real cost to the patient even if the problem isn’t corrected. For example, a patient with a total hip replacement repeatedly dislocates the hip. This is clearly a bad outcome, but if the surgeon has a reasonable plan for treatment, the case is not worth pursuing.

Dr. Manner: What issues specific to orthopaedic surgery, or to orthopaedic surgeons, interest you?

Mr. Budashewitz: Orthopaedic surgeons are frequently sued because the procedures lend themselves to bad results; the cases are complex and a lot can go wrong. Even a good result can have significant complications. Also, many surgeries are performed on younger, more active patients, so any loss or residual deficit is significant.

Because many orthopaedic problems are not life threatening, the patient expects to return to sports or full activity; anything less is unsatisfying and often attributed to the doctor. A bad result, however, can be very disabling and costly.

The last issue is communication. Orthopaedic surgeons are busy, see a lot of patients, and often don’t do the best job of explaining risk and talking to the patient. Sometimes plaintiffs are just angry and upset and want to send a message that the doctor didn’t seem to care.

Dr. Manner: What can orthopaedic surgeons do to reduce their liability risk, assuming that they practice within the bounds of appropriate care?

Mr. Budashewitz: Be clear about the risks. For example, emphasize the gravity of an orthopaedic “infection.” Don’t let the patient think it is similar to a strep throat and can be treated with pills. An orthopaedic infection, or a prosthetic infection, may mean loss of a limb, and the patient needs to fully understand that.

Don’t ignore or dismiss patient complaints. If a patient calls with a serious complaint, and you tell the patient to go to the hospital right away, document the conversation. If the patient ignores your advice and dies, you’re covered from a legal viewpoint. If you don’t document it in the chart, the plaintiff’s attorney may have an airtight case against you.

Dr. Manner: Any other points to consider?

Mr. Budashewitz: Nothing makes the plaintiff’s attorney’s job easier than a defensive defendant. A defendant who is calm, rational, and looks like a good guy on the stand or in a deposition is harder to beat than a witness who’s evasive, nasty, or acts like he or she has something to hide.

Paul A. Manner, MD, a member of the AAOS Medical Liability Committee, is on the faculty at the University of Washington, Seattle. He can be reached at jcarmic@u.washington.edu

Elliot G. Budashewitz, JD, is admitted to practice in New York and New Jersey. A member of the American Bar Association and the New York State Trial Lawyers Association, he specializes in all areas of personal injury law and residential and commercial real estate transactions.