AAOS Now

Published 11/1/2009
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P. Divya Parikh

Key trends for orthopaedic medical liability claims

One third of claims are settled with payment

According to the Physician Insurers Association of America (PIAA), the average indemnity payment in medical liability lawsuits involving orthopaedic surgeons rose by 13 percent from 2003 to 2008, from approximately $233,000 to $270,000. Of the 28 specialties tracked by the PIAA, orthopaedic surgery has the seventh highest average indemnity (Fig. 1).

Of the 2,284 paid claims reported to PIAA in 2008, 195 (8.5 percent) involved orthopaedic surgery. The total indemnity paid for these claims was $52.6 million, and the single largest payment was for $1.7 million. Orthopaedic surgery claims accounted for 6.7 percent of the total indemnity dollars. Nearly one third of all orthopaedic surgery claims resulted in an indemnity payment to the plaintiff.

The average cost associated with defending orthopaedic surgery claims in 2008 was slightly more than $47,000; defense costs for paid claims were higher, at $59,000. The total cost for defending the 501 claims made against orthopaedic surgeons in 2008 was more than $23 million.

Cumulative data for the years 1985 to 2008 indicate that orthopaedic surgery ranks fifth among the 28 specialty groups included in the PIAA analysis in both the total number of claims reported and the amount of money paid.

As shown in Fig. 2, approximately 84 percent were board certified (based on cases that included board certification status) and 44 percent of orthopaedists were younger than age 45 when the claim occurred.

The most common error
Nearly half (45 percent) of the claims reported during 2008 cited “improper performance.” The top five procedures noted included the following:

  • operative procedures on joint structures (exclusive of spinal fusion)
  • open reduction of dislocation
  • closed reduction of fractures
  • operative procedures on bones
  • operative procedures on cranial and peripheral nerves

Of these, “operative procedures on joint structures” resulted in the highest average payment, just over $200,000. Nearly two thirds (63 percent) of closed cases involving surgery on the wrong patient or wrong body part (reported in 2008) involved an indemnity payment. Among other alleged medical errors in 2008 data, however, the percentage of paid claims relative to closed claims was lower.

The most common condition
In 2008, 21 percent of the total closed claims against orthopaedic surgeons named “osteoarthritis” as the patient’s condition, and of these, 14 percent resulted in an indemnity payment. This is a new finding; in previous years and cumulatively since 1985, “fracture of femur” was the most common condition named in orthopaedic surgery claims.

This new trend may reflect the aging of the U.S. population, as baby boomers enter their sixth decade of life. “Disorder of joint, not including arthritis” accounted for the next-highest number of closed claims in 2008, while “fracture of femur” was third.

Prevalence of procedure
“Operative procedure on joint structures” was the procedure that resulted in the most claims, in 2008 as well as in the cumulative data. Of the nearly 19,000 orthopaedic surgery claims filed from 1985 to 2008, 34 percent involved this type of procedure. The total amount paid on these claims was $339 million.

Severity of injury
For both 2008 and on a cumulative basis, the PIAA Data Sharing Project (DSP) reflected an unexpected result as it relates to severity of injury in orthopaedic surgery claims. More than four times as many claims involved “temporary injury” (relatively minor and requires no treatment) compared to “major permanent injury” (Table 1).

Conclusion
PIAA DSP data highlight the areas of orthopaedic surgical practice that should command particular attention. The second installment of this two-part article will provide recommendations to enhance risk management and patient safety and potentially reduce medical professional liability exposure for orthopaedic surgeons.

P. Divya Parikh is director of research and loss prevention at the Physician Insurers Association of America.

The PIAA Data Sharing Project
The Physician Insurers Association of America (PIAA) is a leading insurer trade association, representing medical professional liability insurance companies owned and/or operated by physicians, hospitals, dentists, and other healthcare providers.

In the United States, PIAA member companies include large national insurance companies, midsize regional writers, single-state insurers, and specialty companies that serve specific healthcare-provider niche markets. Collectively, these companies provide insurance protection to more than 60 percent of America’s private practice physicians.

The PIAA Data Sharing Project (DSP), an ongoing claim study, currently includes data from 21 PIAA member companies.

The DSP contains information on closed claims and suits, as well as information on suits that have been open for 1 year or more. Since 1985, the DSP has accumulated more than 250,000 claims and suits. More than 90 percent are closed claims, and of these approximately 30 percent involved an indemnity payment.

The goal of the DSP is to provide PIAA member companies with detailed, credible information for use in risk management programs to reduce the incidence of patient injury as well as physician exposure to claims. DSP data have been used to address issues of communication among providers, documentation of medical records, and emerging risks associated with telemedicine and electronic health records.

For more information, visit the PIAA Web site at www.piaa.us