The fear of medical malpractice lawsuits can have a negative impact on the delivery of health care in America. Physicians who fear being sued may avoid treating those they see as high-risk patients, which affects access to care. Or, they may engage in defensive medicine, which is the practice of ordering extra tests to avoid lawsuits.

For example, according to results of a survey of Orthopaedic Trauma Association members, 35 percent of respondents had discharged patients with anticoagulation to avoid legal liability rather than basing that decision on their medical knowledge and expertise. Waste and unnecessary treatments can result when fear of litigation and the resulting use of defensive medicine are based on myths instead of facts.

This article explores the facts behind medical liability lawsuits to validate the facts and debunk the myths.

Who gets sued?
Orthopaedic surgery is a high-risk malpractice field. Of the 28 medical specialties, orthopaedic surgery is the seventh highest in claims generated. Roughly one in six orthopaedic surgeons will be named in a new claim every year.

General orthopaedists are at higher risk for medical liability lawsuits than specialists. Orthopaedic surgeons with multiple claims belonged on average to only one professional society. By comparison, surgeons with no claims made against them belong on average to 1.7 professional societies, a statistically significant difference.

At lower risk are those who are viewed as academics or experts. Of orthopaedic surgeons with no claims, 71 percent have an academic faculty appointment. By comparison, only 19 percent of orthopaedic surgeons with multiple claims made against them have an academic faculty appointment.

Another statistically significant risk factor for orthopaedic surgeons with higher claims is being or appearing young. Almost half of all claims are made against surgeons 45 years of age or younger. Other significant factors include being born in another country or having trained overseas.

How much will I get sued for?
Many orthopaedic surgeons worry that lawsuits are typically multimillion dollar events, which drives many of their fears. According to the Physician Insurers Association of America (PIAA), the average payment in medical liability lawsuits involving orthopaedic surgeons in 2008 was $270,000. The average claim costs approximately $47,000 to defend. However, both claim costs and payments are paid by the insurance company. A surgeon with adequate medical liability coverage should not be worried about losing everything in the event of a lawsuit.

Contrast this, for example, with informed consent liability. A malpractice lawsuit falls under the legal rubric of negligence and is covered by medical liability insurance. However, an informed consent violation falls under the legal rubric of assault. It is not covered by malpractice insurance, and payments will come out of the physician's own pocket.

Fortunately, informed consent is largely controllable by the physician. Courts have looked favorably upon physicians who obtain consent in clinic rather than in the preoperative holding area, reasoning that the patient had ample time and opportunity to research the procedure before consenting.

Plaintiffs, however, have successfully argued that consents obtained just prior to surgery were invalid, as they felt pressured and disoriented and did not understand what was happening. Similarly, courts frown upon consents obtained without translators from patients who are deaf or do not speak English. For this reason, informed consent is best viewed as a process, instead of simply as documentation.

Which patients sue?
Many physicians believe that poor and uninsured patients are more likely to sue. In fact, these patients are significantly less likely to sue than wealthier patients. The odds ratio for lawsuits is 0.2 for poor patients compared to those with higher income, and 0.1 for uninsured patients versus privately insured patients. One reason for this is that it actually takes significant resources to mount a medical malpractice claim. The overwhelming majority of lawsuits against physicians are unsuccessful, so attorneys are generally unlikely to accept a case on contingency alone.

Another misconception is that minorities sue more frequently than Caucasians. In truth, the race and gender of the plaintiff are not significant risk factors in initiating a medical malpractice lawsuit. One demographic, however, is different: elderly patients who sustain a medical injury are statistically significantly less likely to sue.

So who does sue? The most common claimants are employed individuals who sustain a disability. The loss of future earnings is not only significant for a high wage earner, but easily quantified and claimable in a court of law. This makes the case attractive for malpractice attorneys. Permanent disability cases are, therefore, high-risk as well as high-priced cases.

Temporary disability cases are far more common, with four times as many claims initiated for temporary disabilities than for permanent disability in orthopaedic surgery.

Which cases are high-risk?
One widely held belief is that trauma patients are a high-risk group, and that limiting trauma or emergency department (ED) call will lower a surgeon's malpractice exposure. This, however, limits access to care, so it important to see if this fear is myth or truth.
According to a 2008 claims study by the insurance industry trade association PIAA, the top five most litigated orthopaedic procedures are as follows:

• surgical procedures on joint structures (exclusive of spinal fusion)
• open reduction of dislocation
• closed reduction of fractures
• surgical procedures on bones
• surgical procedures on cranial and peripheral nerves

This shows a shift over the past 30 years in which cases are litigated. In 1985, the most commonly litigated orthopaedic diagnosis was "fracture of femur." In 2008, the most commonly litigated procedure was "surgical procedure on joint structure"—not on a bone, fracture, or dislocation. "Osteoarthritis" was the most common diagnosis, followed by "disorder of joint, not including arthritis." "Fracture of femur" was third.

These data suggest that risk has shifted from the trauma setting to the elective joint replacement setting. Although mitigating risk by avoiding trauma or ED call may once have been true, it appears that this paradigm has shifted.

Why do patients sue?
Money is not always the primary motivation for lawsuits. Poor physician communication has been shown to be a major controllable factor in a patient's decision to sue. When an adverse event occurs, physicians often feel defensive and worry that apologies will be seen as admissions of guilt. Silence and stonewalling, however, often have the unintended effect of alienating patients. In an attempt to get answers, patients may be driven to pursue litigation.

Taking time to develop the physician-patient relationship, explaining risks thoroughly through the informed consent process, and promptly and transparently explaining problems as they occur have been shown to decrease malpractice claims. For these reasons, many hospital systems have instituted early mediation programs, and many states have adopted "apology statutes" to protect statements of apology ("I'm sorry this happened" or "I'm sorry you had a bad outcome") from being presented in court as admissions of guilt. Orthopaedic surgeons should consult the hospital risk management officer to find out whether such programs or statutes exist in their states.

Conclusion
Until states and/or the federal government adopt tort reform legislation, medical malpractice is a reality in orthopaedic surgery. Risk mitigation is not to be found, however, in avoiding the poor, the uninsured, or the elderly, because these groups are actually less likely to sue. Nor is avoiding trauma call a valid way to reduce the risk of lawsuits, because the most commonly litigated procedures are elective joint surgeries.

Risk mitigation starts with the physician-patient relationship. Developing effective communication skills will ensure that the patient truly understands the procedure and its risks and benefits, thereby reducing informed consent liability risk. Early and transparent communication after an adverse event will help prevent distrust and suspicion and has been shown to reduce the rates of litigation.

Orthopaedic surgeons should work with their hospital risk management team to stay abreast of programs and laws that help preserve the trust between doctors and patients. To encourage changes in legislation, consider contributing to organizations working for tort reform, such as state orthopaedic societies and the AAOS Political Action Committee.

Amanda Schroeder, MD, is a research fellow at the University of Cincinnati. David H. Sohn, JD, MD, is chief of the shoulder and sports medicine service at the University of Toledo Medical Center.

Bottom Line

• It is a myth that the poor, the uninsured, minorities, elderly, or trauma patients file most medical malpractice lawsuits.
• It is a fact that academic orthopaedists, those who belong to more than one professional society, and specialists are at less risk for being sued.
• Early and transparent communication after an adverse event has been shown to reduce litigation rates.

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.