Published 10/1/2011
Alan Lembitz, MD

How likely are you to be sued?

It’s not a question of whether, but when…and how to reduce your risk

Did you know that the cumulative likelihood of a physician in the highest risk specialties (neurosurgery, cardiothoracic surgery, general surgery, orthopaedic surgery, and plastic surgery) having a medical liability claim is 88 percent by age 45 and 99 percent by age 65? This is according to a recent study, based on research funded by the Rand Institute for Civil Justice and the National Institute on Aging, and published in the New England Journal of Medicine. The claims data came from nationwide data of a large professional liability company and included 40,916 physicians and 233,738 physician years, from all 50 states; the study is probably the largest and most comprehensive analysis of its kind.

Nearly 15 percent of orthopaedic surgeons face a medical liability claim annually and 4.2 percent of them make a payment to the claimants. This compares to 7.4 percent of all physicians in the study facing annual medical liability claims, of whom 1.6 percent make payments.

For all physicians, the average payment per claim was $274,887; the median was less, at $111,749. Payments per claim for orthopaedic surgeons were similar to those for all physicians.

A bit of good news is that 78 percent of all medical liability claims do not result in payment to claimants. The high frequency of orthopaedic surgery claims, however, adds to the liability burden of the specialty and, though difficult to quantify, likely drives the practice of defensive medicine. The study reports, “Physicians can insure against indemnity payments through malpractice insurance, but they cannot insure against the indirect costs of litigation, such as time, stress, added work and reputational damage.”

What does this mean for physicians in general and for orthopaedic surgeons specifically? Certainly it shows that concerns and fears about medical liability claims are well founded and can contribute to the practice of defensive medicine.

Some specific patient safety and risk management basics, however, might help ease that burden. Of course, entire conferences, journals, and texts have been written on the subject; but as vice president for patient safety and risk management at COPIC Insurance, I’ve seen the same trends and frequency data as those reported in the article and have distilled the following observations.

Informed consent process
Often mentioned, the informed consent process (and its memorialization via the informed consent document) forms the first defense in medical liability cases, particularly when the case involves known complications, regardless of the severity of the outcome. Informed consent builds rapport, fosters shared decision making with patients, and can greatly improve the disclosure process that occurs after an adverse event.

Liability from complications
A defense in cases involving adverse surgical outcomes and complications is possible, provided the situation is recognized as early as possible, rescued to reduce the potential harm as quickly as possible, and resolved to meet the patients’ needs due to the adverse outcome. All members of the healthcare team must be alert to the signs of adverse outcomes so that they can be identified early.

Patient relationships
Establishing and maintaining the physician–patient relationship is critical when adverse events occur. A patient’s understanding of subsequent care needs, medication reconciliation, and follow-up consultations or procedures is critical to preventing many medical liability lawsuits involving adverse events.

The Joint Commission points to the presence of communication issues in more than 70 percent of sentinel events. With increasing specialization, use of hospitalists, multiple providers, and failure of effective transfer of information and responsibility, adverse events are increasing, regardless of the skills or experience of an individual physician member of the healthcare team.

Physician supervision
Access and resource factors are leading to the increased use of physician assistants and advanced practice nurses. Orthopaedic surgeons who employ these providers must have an understanding of their appropriate scope of practice and the degree of supervision required. They should also recognize the high-risk scenarios in which active physician oversight, management, and documentation of care is required and comply with state rules and regulations regarding these providers to help mitigate the added liability risk.

Electronic health records (EHRs) enable a provider to document detailed and comprehensive notes. Built-in templates, however, might not actually reflect the history, examination, and care that actually occurred. Defense attorneys can often successfully defend an honest, credible reflection of a physician’s thoughts and decisions, but these elements may be obscured when large portions of the record are simply carried forward or use boilerplate language.

Given the 99 percent likelihood that high-risk specialists such as orthopaedic surgeons will face a medical liability claim, attention to improved patient safety, communication and patient relations, and active risk management become even more important. These elements need to become an intrinsic part of both the office and hospital culture. Although much may be beyond the surgeon’s control, he or she can still focus on aspects under his or her control and work to change the current system.

Alan Lembitz, MD, is vice president for patient safety and risk management at COPIC Insurance.

Editor’s Note: Articles labeled Orthopaedic Risk Manager are presented by the Medical Liability Committee under the direction of contributing editor S. Jay Jayasankar, MD.

Articles are provided for general information and are not legal advice; for legal advice, consult a qualified professional.

Email your comments to feedback-orm@aaos.org or contact this issue’s contributors directly.

Additional Resources:

Jena AB, Seabury S, Lakdawalla D, Chandra, A. Malpractice Risk According to Physician Specialty. N Engl J Med 2011;365:629-36

Malpractice Risk According to Physician Specialty