Published 1/1/2011
S. Jay Jayasankar, MD

What risks? Whither management?

Risk management—in any field—attempts to identify and control hazards to prevent or minimize risks. Ideally, managing risk becomes part of an organization’s culture, with an emphasis on human factors and behavior.

Secondary prevention
Traditional risk management in medical tort liability has focused on defending claims. (See “
The surgeon’s role in assisting defense counsel” and “Tips and pointers for depositions,” AAOS Now, November 2010.)

This “secondary prevention” is important and also includes understanding insurance, laws and their evolution, effective record keeping, compliance with protocols and guidelines (as appropriate), and the widely discussed practice of defensive medicine—either avoiding high risk cases or ordering tests and treatments primarily to provide defense against potential liability claims.

Secondary prevention, however, does little to directly address the root causes of medical liability lawsuits. About one third of all orthopaedic surgeons are sued every year, but plaintiffs prevail in only 14 percent of jury verdicts.

Primary prevention
Primary prevention aims to prevent the root causes of medical liability lawsuits—patient injury and suboptimal patient–physician relationships and communication. Richard Boothman, chief risk officer for the University of Michigan Health System, tells the story of a plaintiff patient who told the defendant doctor that she would never have sued—if only she had known the events of her injury that she learned during the trial! Attention to primary prevention, more importantly, enhances patient and physician satisfaction and the overall quality of care.

Examples of primary prevention risk management efforts include training physicians in delivering culturally competent care, improving their communications skills, and preventing errors through programs such as Sign-Your-Site, the Universal Protocol, and the Communications Skills Mentorship Program.

Tort risk management
Risk management efforts should also address the “fallouts” and “creep-ins” of medical liability.

“Fallouts” refer to outcomes beyond the financial and the “win” or “lose.” The patient and family sustain not only physical injury and economic loss, but also an emotional loss. A continued healthy patient–physician relationship and an effective apology may help mitigate this, and physicians would benefit from appropriate training.

After a patient injury, however, the involved physician and team (appropriately termed the “second victims”) may also experience emotional consequences as a fallout from a lawsuit or the very occurrence of the injury, avoidable or not. They also need support. Inadequate attention has been paid to this emotional aspect of risk management, despite evidence showing serious adverse effects on the physician, the team, and the patient’s family, as well as on the physician’s future care of other patients and the potential for error.

Such training and support for physicians are key requisites for the success of “disclosure and early offer programs,” such as those discussed in the September 2010 issue of AAOS Now, as alternatives to the current liability system.

“Creep-ins” are the extraneous factors in today’s complex health system that may inadvertently compromise professionalism, performance, or even patient safety. Often, these accompany new technologies such as electronic medical records or rapid advances in instrumentation, implants, and procedures. Surgeons need to be particularly careful in adopting advancements and be mindful of individual and collective professional learning curves and technology “bugs.”

Use of electronic medical records (EMR) poses its own tort risks. EMR systems may also make it easy for erroneous information, once entered, to take a life of its own with potential adverse downstream effects for the patient.

Risks not covered by insurance
While tort concerns are overwhelming, some risks, generally not covered by liability insurance, may threaten a physician’s license, hospital privileges, participation in health insurance programs, and ability to practice.

An increasing number of rules and regulations from licensing bodies, government and other agencies, hospitals, and insurance and other payment intermediaries, combined with escalating demands for accountability, transparency, and reporting to centralized data banks comprise this area. For example, the National Practitioner Data Bank collects information on sanctions and other actions against healthcare professionals; the Healthcare Integrity and Protection Data Bank collects information on insurance and billing violations and health plan exclusions.

Non-compliance with Medicare regulations, for instance, may lead to penalties, suspension of participation in the program, or action by the Inspector General, which may have a ripple effect on participation in other insurance and hospital programs.

Help us help you
The AAOS Medical Liability Committee strives to anticipate the changing times and needs of AAOS members and to address them through Orthopaedic Risk Manager articles in AAOS Now. The committee urges readers to provide feedback and let us know whether the scope, breadth, and depth of these writings are of value to you and suggestions for topics you would like addressed. Contact us at

S. Jay Jayasankar, MD, is a member of the AAOS Medical Liability Committee and serves as a contributing editor to the Orthopaedic Risk Manager section of AAOS Now.

U.S. Food and Drug Administration.
Hazard Analysis and Critical Control Point Principles and Application Guidelines. Accessed on October 2, 2010

Hilson D. Risk management: Best practice and future developments. Accessed on October 4, 2010

Anderson RE. Defending the practice of medicine. Arch Intern Med. 2004;164:1173–1178.

Hartwig RP. Medical Malpractice Insurance Jury Verdict Research; Insurance Information Institute volume 1 #1. Accessed on October 1, 2010

Hickson GB, Clayton EW, Githens PB, Sloan FA. Factors that prompted families to file medical malpractice claims following perinatal injuries. JAMA 1992;267:1359-1363

Levinson W, Roter DL, Mullooly JP, Dull VT, Frankel RM. Physician-patient communication: The relationship with malpractice claims among primary care Physicians and surgeons. JAMA 1997;277:553-559

Ambady N. Surgeon’s tone of voice: A clue to malpractice history. Surgery 2001;132:5-9

Debanco T, Bell SK. Guilty, afraid, and alone—struggling with medical error. New Engl J Med.2007; 357:1682–1683.

Lazare A. Apology Dynamic. AAOS Now. May 2010. Accessed on October 1, 2010

Wu, A. Medical error: The second victim. The doctor who makes the mistake needs help too. BMJ, 2000;320:726–727.

Wu AW, Cavanaugh TA, McPhee SJ, Lo B, Micco GP. To tell the truth: Ethical and practical issues in disclosing medical mistakes to patients. J Gen Intern Med 1997;12:770-775.

Gallagher TH, Waterman AD, Ebers AG, Fraser VJ, Levinson W. Patients' and physicians' attitudes regarding the disclosure of medical errors. JAMA 2003;289:1001-1007.

Liebman CB, Hyman CS: A mediation skills model to manage disclosure of errors and adverse events to patients. Health Aff (Millwood) 2004;23:22-32.

Carr, S. Disclosure and apology: What’s missing? Advancing programs that support physicians. Medically induced trauma support services. A report based on an invitational forum held on March 13, 2009. Accessed on October 4, 2010

Kenney LK, van Pelt RA. To err is human; The need for trauma support is, too. Patient Safety & Quality Healthcare.2005;2:6–9.

Scott SD, Hirschinger LE, Cox KR, McCoig M, Brandt J, Hall LW. The natural history of recovery for the healthcare provider “second victim” after adverse patient events. Quality and Safety in Health Care. 2009;18:325-330.

Waterman AD, Garbutt J, Hazel E, Dunagan WC, Levinson W, Fraser VJ, Gallagher TH. The emotional impact of medical errors on practicing physicians in the United States and Canada. The Joint Commission Journal on Quality and Patient Safety. 2007;33:467–576.

White AA, Waterman AD, McCotter P, Boyle D, Gallagher T. Supporting health care workers after medical error: considerations for health care leaders. J Clin Outcomes Mgmt May 2008;15(5):240-247

Lobron A. Saying sorry [U. of Michigan Liability Management Program]. AAOS Now September 2010.

Lembitz A. Litigation alternative: COPIC’s 3Rs Program. AAOS Now September 2010.

Jayasankar SJ. Transforming the medical liability system. AAOS Now September 2010. Accessed on October 3, 2010

Freyer FJ. Board disciplines three doctors. Providence Journal. August 12, 2010

Schoppmann MJ. Physicians as targets. AAOS Now March 2010. Accessed on October 4, 2010

Health Care Quality Improvement Act, 42 USC §§ 11101-11152.

Rice, B. Peer Review Gone Awry: The bittersweet victory of Dr. Schulze. Medical Economics 2001;11:106

Albert, T. Court drafts exception to keeping peer reviews closed. AMNews. Sept. 10, 2001

Editorial. Due process: first things first in peer review. AMNews. July 2, 2001

Jayasankar, SJ. Medical peer review and risk management. AAOS Now. October 2008. Accessed on October 4, 2010

Patrick v. Burget 486 U.S. 94, 105 n. 8, 108 S. Ct. 1658,100 L.Ed.2d 83 (1988).