Fellowship survey finds 92 percent of trial cases decided for defendant
Douglas W. Lundy, MD, FACS
The AAOS Medical Liability Committee recently fulfilled one of its charges by conducting the 2011 Professional Liability Insurance Survey. The committee regularly surveys the fellowship to ensure that the needs and perceptions of the membership are addressed. The last such survey was performed in 2006. The findings in this report provide insight into the current professional liability climate for the practice of orthopaedic surgery in the United States.
The survey was sent via fax and email to a randomized group of 6,111 AAOS Fellows in all 50 states and the District of Columbia, with several follow-up reminders. The methodology used in this survey was performed in a scientific method to ensure that the findings would have statistical significance. The survey had a 12.2 percent response rate (684 completed questionnaires), which was sufficient to determine statistical significance between variables and obtain a consistent sample.
One quarter of respondents (26 percent) identified themselves as general orthopaedic surgeons; generalists with a specialty interest accounted for 30 percent of respondents and specialists made up the largest group (44 percent). Mirroring the Academy’s general members, 95 percent were men. The most common locations of practice were private practice in a group setting (42.4 percent), solo private practice (20.3 percent), academic medicine (14.9 percent) and hospital-based employment (8.9 percent).
Characteristics of coverage
The most common form of coverage was conventional third-party medical liability insurance (35.3 percent), followed by hospital-based coverage (18.3 percent). Only 2.2 percent of physicians stated that they didn’t carry medical liability insurance at all.
Approximately two thirds of respondents (64 percent) stated that they were required to carry at least $1 million/$3 million coverage, and most (56 percent) actually had $2 million/$6 million policies.
Orthopaedic surgeons paid an average of $34,920 annually for medical liability insurance; median premiums were $30,000, down substantially from the $38,000 median noted in the 2006 survey. No statistical difference was found in the cost of premiums between general orthopaedic surgeons or specialists.
The number of times that an orthopaedic surgeon has been sued does affect the cost of professional liability insurance (P < 0.05). Surgeons who had never been sued paid an average of $22,270 annually for their insurance, while those who had been sued five times or more paid $43,920 annually. Forty percent of respondents stated that the cost of their insurance had not changed from the previous year; premiums went down for 18 percent of respondents, and increased for a similar percentage.
Respondents had been sued an average of 3.17 times in their career with a standard deviation of 3.1 cases. Because the surveyed group reflected orthopaedic surgeons at significantly different stages in their careers, with the average respondent being 55.4 years old, the reported standard deviation is not surprising. The most common procedure related to claims was “urgent/emergent orthopaedic” care followed by “elective orthopaedic” care.
As with previous surveys, most cases were either settled or dismissed. Of the few cases that went to trial, the orthopaedic surgeon’s defense was successful 92 percent of the time.
Expert witnesses are required for medical liability proceedings. The survey asked about the expert witnesses who provided testimony during the suit. Because expert witnesses are usually retained by the plaintiff’s or defendant’s counsel and their explanation of the case during deposition or trial tends to support one side or the other, the survey defined experts as “defense” or “plaintiff.” An ethical expert, however, does not advocate for one side or the other but rather provides his expert opinion solely to provide clarity on a complex medical matter for the court and ultimately the jury. Table 1 shows characteristics of the primary expert witness for the defense and for the plaintiff.
Impact of litigation
The threat of a medical liability lawsuit has profound effects on orthopaedic surgeons. More than one quarter (28 percent) of respondents stated that professional liability issues affect their day-to-day practice a great deal, and nearly half (48 percent) responded that it affected their practice somewhat. When asked about the impact of professional liability issues on patient care, the surveyed surgeons responded similarly. In light of recent attention on the high cost of defensive medicine, it is not surprising that such high numbers of our fellowship are concerned about the threat of litigation.
Although meaningful medical liability reform on the state level may be positively affecting insurance rates and lowering premiums overall, this trend may be short-lived. Legislation in some states is being challenged or overturned, underscoring the need for effective medical liability reform on the federal level.
The high incidence of medical liability lawsuits (average 3.17 times per surgeon) is a startling figure that many may assume is the price that orthopaedic surgeons pay to practice. The significant professional, emotional, financial, and personal damage that occurs to orthopaedic surgeons when they are served with a medical liability lawsuit is too often minimized by the trial attorneys and the nation’s lawmakers.
Douglas W. Lundy, MD, FACS, chairs the AAOS Medical Liability Committee. He can be reached at firstname.lastname@example.org