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Checklists ensure that steps are not skipped and best practices are followed.
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AAOS Now

Published 10/1/2011
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Theodore J. Clarke, MD

Avoiding a lawsuit: Lessons from the never-sued

An orthopaedic career without a single lawsuit is possible

In orthopaedics, the average physician is named in a lawsuit once every 7 years. So can a practicing orthopaedist have a 40-year career without being sued? In my position as CEO and Chairman of COPIC, a medical liability company, I have been privileged to know several surgeons who have had long careers without a lawsuit.

Recently, I spoke with four mentors who have a combined 110 years of practice experience—without a single lawsuit. They have lived through periods of great change, but they share some common traits that, I believe, are key in their successful avoidance of a medical liability claim and provide guidelines for practicing physicians who wish to emulate their record.

Be nice
From the moment you first meet each of these role models, you realize that he is a truly nice person. They are uniformly concerned with their patients, and they treat their patients like family. They commonly do rounds on weekends and holidays and seem to enjoy the office as much as the operating room.

“It was never the ‘ACL’ in bed one, but the ‘17-year-old cheerleader, a college-bound daughter of a friend, who tore her anterior cruciate ligament (ACL) playing high school basketball.’ We knew more about our patients than simply the orthopaedic concern,” one observed.

“I did an anterior/posterior lumbar fusion and my patient, a beautiful, loving grandmother, unfortunately woke up blind. She sued the anesthesiologist, the general surgeon, and the hospital. She told her attorney that she would never sue me because I was always looking out for her. I still think about her a lot,” said another.

“Don’t perform a procedure on your patient if you would not have it done on yourself,” they advised, applying the golden rule to orthopaedics.

Be competent
Each of these mentors stays up-to-date on the literature. As a group, they believe that certification is necessary, but it is a minimal threshold for competency. The real test of competency is a satisfied patient or colleague who appreciates the treatment provided.

These surgeons know their abilities and limitations. Before performing a new procedure, they would scrub multiple times with an accomplished surgeon and ask for help with the case until they themselves felt competent. Because they trained in the era before arthroscopy, closed rods, and most arthroplasty procedures were developed, they learned new skills by working with other surgeons, animals, and lab models.

“The practice of surgery does not mean practice on your patients,” one observed. “We brought in a partner or a colleague who had learned arthroscopy and could teach the rest of us. We did the same thing for various joint procedures, spinal instrumentation, the Ilizarov technique, and other innovations. It was more than a weekend course.”

Be communicators
Each mentor stressed the role of communicating with patients, partners, colleagues, and staff in improving outcomes and reducing errors. “The days of doing this alone are long gone,” one observed. “We need to have everyone, including patients and others involved in patient care, on the same page. I always discussed treatment considerations with my colleagues, particularly those in radiology or pathology who don’t have the advantage of seeing the patient. When I would see an unhappy patient to provide a second opinion, I would discuss it with the treating physician who often had a different view of the treatment. I believe my colleagues gave me the same courtesy, and this civility undoubtedly kept lawsuits at bay.”

Back to basics
All of these mentors consistently followed basic patient safety and patient care guidelines. If they ordered a radiograph, electrocardiograph, or lab test, they checked the results. They ordered preoperative studies based on quality improvement and patient safety. They used tickler files to remind them of lab tests and consults, and the ordering physician saw and signed off on the files.

The patient’s history and physical exam were screened for patient safety and appropriateness for the proposed procedure. They involved the nursing staff during rounds to ensure coordinated care and to uncover issues that the patient was not voicing to the doctor. They routinely conducted and documented neurovascular checks and addressed any abnormalities. When multiple providers were involved in patient care, the SOAP (subjective, objective, assessment, plan) note addressed concerns such as postoperative fever, deep venous thrombosis (DVT) stratification, antibiotic usage, pain, and other issues noted by other caregivers.

Use checklists
To avoid potential variances in practice and ensure that distractions didn’t result in a skipped step, these physicians used specific protocols. Checklists served as an assurance that best practices were being followed.

“We were not doing cookbook medicine,” said one, “but we were guaranteeing implementation of best practices. We did not want to reinvent the wheel when we were tired or hurried. As a group, we agreed on preoperative antibiotics, DVT prophylaxis, and other guidelines that the Academy had recommended. This actually made handoffs easier, and the physician on-call didn’t have to guess what the treating physician wanted.”

Use common sense
These physicians rarely performed major elective surgeries at night or on a Friday. “You want the best team available to do your best job,” one observed. Evening surgeries were for urgent care and not elective cases.

If a complication arose, they wanted immediate notification. If possible, the treating surgeon would deal with the complication, but would seek a consultation if the adverse event fell outside of his usual and customary practice.

Even if a bad outcome occurred, the surgeon maintained a relationship with the patient. This might involve going on rounds or assisting “gratis” when the patient had been referred to another physician. It frequently involved waiving a bill or working with a hospital to reduce the patient’s out-of-pocket expenses.

“First and foremost, you have an obligation to the patient,” said one. “When a complication occurs on your watch, you must be involved in getting your patient back to health.”

Address complications
Unanticipated outcomes occur, but recognizing and addressing them in a timely fashion will help avoid lawsuits. The informed consent discussion is an opportunity to discuss adverse events before they occur and to reassure the patient that a plan is in place if a problem arises.

Vascular events are potentially catastrophic and require immediate attention. One surgeon noted that pain pumps and nerve blocks have increased the importance of a neurovascular exam. “My partner did a total knee in a patient who had an intraoperative popliteal artery thrombosis,” he recalled. “Unfortunately, the patient had a continuous spinal block, and the problem was not recognized for 30 hours postoperatively.” Nerve changes need to be explained with a rationale and a treatment plan.

Work on public policy
In assessing the importance of involvement in public policy, one mentor noted, “We achieved tort reform in 1988 in Colorado through bipartisan support. The state medical society, the Colorado Orthopaedic Society, and COPIC put considerable effort into building relationships to help maintain this favorable environment.

“We are not so naïve as to believe that we have better doctors in Colorado than in other parts of the country. If pain and suffering is worth $1 million plus in Florida and only $300,000 in Colorado, the Florida doctor is likely to be sued more frequently. That is why we support our state and national political action committees,” he continued. “We must have relationships with policy makers. If the average physician gives $75 to public policy and the average trial attorney gives $3,000, it’s no wonder we don’t have meaningful liability reform.”

It is easy to believe that medical liability suits are the price of doing business. It is possible to attribute the frequency and cost of liability to the hazards of our profession. Still, a few surgeons have successfully navigated through such adverse liability waters, and the rest of us can learn from their experiences and wisdom.

Theodore J. Clarke, MD, is a member of the AAOS Medical Liability Committee and chairman and CEO of COPIC, a physician-owned medical liability insurance company based in Colorado. He can be reached at tclarke@copic.com