AAOS Now

Published 6/1/2014
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Robert R. Slater Jr, MD

Lessons from the Literature on Litigation

The threat of being sued for malpractice hangs over the heads of physicians like the sword of Damocles. Concerns about litigation often play some role in the decision making process when treating patients.

To put this in context, a frequently cited study published in 1993 found that nearly 40 percent of the U.S. membership of the American Society for Surgery of the Hand has been sued at some point, and more than one third of members had been sued more than once. Although no similar study has been published recently, nothing suggests that the problem has done anything but worsened.

Although all surgeons are at risk, recent studies offer insight into factors that contribute to claims filed. They also provide guidance on what surgeons can do to minimize their risk of adverse legal actions.

Acute injuries
For example, a recently published paper analyzed factors related to claims filed and claims paid in cases of upper extremity pathology. Data were obtained from the records of a single malpractice insurance carrier (The Doctors Company, Napa, Calif.), but the company insures doctors in all 50 states and is the largest physician-owned liability insurer in the United States.

Among other things, the authors found that most often (74 percent of the time), claims were filed in cases involving common problems—not the rare, unusual, or difficult cases that present the greatest challenge to a surgeon. Additionally, claims were more often filed for cases involving fractures and semi-elective procedures than for those involving surgery or treatment for chronic or degenerative conditions.

Reasons for these findings may be multifactorial but first among them may be that patients with acute injuries expect treatment to return them to “normal” activities and sports. Patients with chronic conditions such as arthritis, however, are seeking improvement in their current condition rather than a return to “normal.”

These findings need not be viewed as a warning siren for surgeons not to take emergency call, but rather can be turned around and viewed in a more positive light. It is not the exotic “zebra” case that will get surgeons in trouble or lead to a lawsuit. The fear of having to face a tough problem while on call is not the source of most litigation. Rather, what leads to trouble is the management of more routine, common problems and fractures, performed in substandard fashion and without a clear and documented explanation to the patients that return to “normal” is unlikely.

These issues are in the control of the surgeon. The same study found that in cases that resulted in payment, factors leading to the damaging event were in the surgeon’s control 97 percent of the time.

Second surgeries
The need to perform a second surgical procedure is often associated with a greater risk of a claim being filed. A 2001 study found that 57 percent of claims paid and 40 percent of all claims filed involved a second surgery. That suggests another opportunity to be proactive. If the initial explanation clearly indicates that additional procedures may be needed—perhaps to perform bone grafting, adjust hardware, or address nerve problems—patients may be far less likely to subsequently file a claim for perceived malpractice.

Ask a colleague
Surgeons may think of themselves as strong, independent problem solvers who can handle whatever problem arises. Often the toughest, most humbling action is to admit when one is in trouble and needs help. Yet, the data are clear that when one is drawn out of one’s area of expertise, falls below the standard of care in management, or has more practice pattern violations, then the risk of claims filed and claims paid escalates. Consultations with colleagues and other specialists or referral for assistance in managing problems will often serve both patient and physician very well.

This concept was reinforced by another recent paper. The authors discussed prior work that showed the most common claims related to upper extremity surgery are for treatment of fractures involving the wrist (usually distal radius) and carpal tunnel release. Again, management of common problems can either keep the surgeon safe or lead to trouble.

Pooled data from European studies on medical liability show a common cause of litigation was missed injuries in the emergency department, such as unrecognized carpometacarpal fracture-dislocations in the hand. A large study from The Netherlands analyzing all hand and wrist malpractice claims between 1993 and 2007 showed that general surgeons who only occasionally treated hand injuries were more likely to be involved in litigation for those problems.

This reinforces the crucial themes: treat what is within your normal scope of practice, stay current, be clear in your communication with patients about realistic goals and expectations, and don’t be afraid to ask for help. Documentation in the medical record is essential; as the adage goes, “the lawyers don’t try you, they try the medical record.”

The good news
Is there any good news to be found? Yes. Surgeons may take heart in the following:

  • Many medical malpractice claims filed are frivolous and will be dropped. A 2006 study showed at least one third of all cases have no merit.
  • Only 10 percent of all cases ever go to trial.

For the surgeon going through it, the litigation process and defense of a case is a gut-wrenching roller coaster ride. But for the lawyers, it’s just another day at the office, filled with many such cases and appointments, perhaps analogous to the surgeon’s schedule, seeing a different patient with a problem every 15 minutes.

In light of the recent publications on this topic in the orthopaedic literature, the following are the important lessons about how surgeons can minimize the (perhaps inevitable?) risk of a malpractice suit.

  • Take measures to avoid easily preventable mistakes within surgeon control.
  • Avoid wrong-site surgery.
  • Ensure proper equipment is present at the start of a procedure.
  • Be clear and honest with patients.
  • Explain inherent risks in procedures.
  • Explain how and why there may be a need for a second surgical procedure.
  • Explain problems encountered at surgery and how they were managed.
  • Develop rapport with patients.
  • Document meticulously. Records should reflect the scope of relevant discussions and the thought process of the treating surgeon at the time.

Patients who believe that their surgeons are acting on their behalf and to the best of his or her ability are far less likely to sue, even when major permanent damages occur. Data show that even in cases where major permanent damage does occur, claims are not always filed or paid.

Keeping these principles in mind and following them on a daily basis will make for a far more pleasant journey despite the threats of litigation ahead.

Robert R. Slater Jr, MD, is a member of the AAOS Medical Liability Committee. He can be reached at rslater96@gmail.com

Editor’s Note: Articles labeled Orthopaedic Risk Manager (ORM) are presented by the Medical Liability Committee under the direction of Robert R. Slater Jr, MD, ORM editor.

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.

References:

  1. Kessler FB: Hand surgery and the medical liability issue. J Hand Surg Am 1993;18(4):557-559.
  2. Matsen FA 3rd, Stephens L, Jette JL, Warme WJ, Huang JI, Posner KL: The quality of upper extremity orthopedic care in liability claims filed and claims paid. J Hand Surg Am 2014;39(1):91-99.
  3. Biberthaler P, Seifert J, Post M, et al: [Identification of risk factors for subsequent legal claims in orthopedic and trauma surgery]. Unfallchirurg 2011;114(9):768-775.
  4. Pappas ND, Moat D, Lee DH: Medical malpractice in hand surgery. J Hand Surg Am 2014;39(1): 168-170.
  5. Mahdavian Delavary B, Cremers JE, Ritt MJ: Hand and wrist malpractice claims in The Netherlands: 1993-2008. J Hand Surg- Eur 2010: 35(5): 381-384.
  6. Studdert DM, Mello MM, Gawade AA, et al: Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med 2006;354(19):2024-2033.