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Published 4/1/2016
Thomas B. Fleeter, MD; Stephanie Hazlett, MPH; Angela Buckley, MPA

Taking the Pulse of Orthopaedic Medical Liability

Results of the 2015 Medical Liability Survey
On a regular basis, the American Association of Orthopaedic Surgeons' (AAOS) Medical Liability Committee surveys AAOS members on their medical liability insurance and their exposure to potential lawsuits. The 2015 Medical Liability Survey was conducted during October and November 2015. The 17-question survey was designed by the committee with the help of the AAOS department of research and scientific affairs. A total of 540 surveys were returned, for a response rate of nearly 20 percent.

Of significant note is that more than a quarter of respondents believe that electronic medical records (EMRs) have had an adverse effect on medical liability exposure. Additionally, two-thirds of respondents admit to practicing some form of "defensive medicine" in response to the medical liability climate.

Respondent demographics
Survey respondents had an average age of 54 years (slightly younger than AAOS members, based on the results of the 2015 Orthopaedic Census). Reflecting the AAOS membership as a whole, 93 percent of respondents were male.

The average number of years in practice was 22 years (range: 3 years to 46 years). Practice settings also reflected the membership as a whole, with most respondents in a private practice orthopaedic group setting (42.9 percent), a private practice solo setting (14.5 percent), an academic practice (13.8 percent), or a hospital or medical center setting (12.6 percent). Other practice settings included private practice multispecialty group, public institution, prepaid plan/health maintenance organization (HMO), locum tenens, and other (Fig. 1).

California (8 percent), New York (7 percent) and Texas (6 percent) had the largest number of respondents when asked where professional liability insurance premiums were determined. The mean insurance premium was $43,194.

Coverage characteristics
Two-thirds (67 percent) of respondents indicated having a current individual insurance level of $1,000,000 per occurrence and $3,000,000 aggregate. Less than 10 percent indicated having lower coverage levels ($500,000/$1,500,000), and slightly more than 10 percent indicated having higher coverage levels ($2,000,000/$6,000,000) (Fig. 2).

When asked about the type of medical liability insurer they used, respondents answered as follows:

  • private, commercial professional liability carriers—30 percent
  • physician-owned carrier or mutual company—28 percent
  • hospital-based coverage—17 percent
  • physician-owned or captive insurance carrier or a state risk pool—8 percent
  • "don't know" or "other"—13 percent
  • retired and no longer have insurance or have no coverage—4 percent

Fig. 3 shows responses to a question on the types of professional liability insurance coverage included in the member's policy.

Lawsuit history
Two-thirds (67 percent) of respondents indicated they had been defendants in a medical liability lawsuit. Of these, 4 percent had been defendants in one suit, 2 percent had been defendants in two suits, 2 percent had been defendants in three suits, 1 percent had been defendants in four suits, and less than 1 percent had been defendants in five or more suits. However, nearly nine out of 10 respondents (89 percent) who admitted being defendants did not indicate the number of suits in which they had been involved. 

Similarly, 89 percent of respondents who indicated they had been defendants in a suit did not indicate how many suits had verdicts for the plaintiff.  Instead, several respondents indicated "other," explaining that the suits were dismissed with prejudice or settled out of court. The most frequent response was zero (7 percent), followed by one (2 percent) and two (less than 1 percent).

The survey also included a question about service as an expert witness in personal injury claims not involving medical negligence. Responses varied widely, ranging from never to several hundred times over the past 5 years.

Nearly two-thirds of respondents indicated they had made practice changes to avoid medical liability. Common changes included implementing better or additional documentation, ordering more tests and advanced imaging, improving communications with patients, and limiting scope of practice.

Respondents were asked whether EMRs have ever contributed to exposure in any liability claims. Nearly three out of four (72 percent) indicated they had not. Respondents who said EMRs had increased liability exposure were then asked to explain how. Common responses included issues with documentation, notation, and recording.

Individual respondents made the following comments:

  • EMR charts contain a lot of unnecessary information and fail to include relevant information.
  • EMR templates and 'check-box' documentation make it difficult to write a comprehensive note.
  • Too much information is being collected only for billing purposes while relevant medical information takes much longer to enter.

Thomas B. Fleeter, MD, chairs the AAOS Medical Liability Committee; Stephanie Hazlett, MPH, is a government relations specialist in the AAOS office of government relations; Angela Buckley, MPA, is a research associate in the AAOS department of research and scientific affairs.

About the Medical Liability Committee
The AAOS Medical Liability Committee is charged with informing AAOS about changes in medical liability laws and encouraging activism on both the state and federal levels to inform legislators about the impact of medical liability on practicing orthopaedic surgeons.

In the past several years, the Medical Liability Committee has sponsored instructional courses on avoiding a medical liability lawsuit and safe prescribing of opioids. Additionally, each year the committee has developed a scientific exhibit at the AAOS Annual Meeting. Previous topics have included off-label prescribing, alternative dispute resolution, and state medical liability legislation. This year's exhibit focused on medical liability and telemedicine. Members of the committee publish a monthly column in AAOS Now titled Orthopaedic Risk Manager that covers a range of topics in the medical liability realm.

The Medical Liability Committee encourages AAOS member input regarding the medical liability issue that affects orthopedic surgeons on a daily basis.

The Medical Liability Committee works closely with the AAOS office of government relations (OGR) on all liability-related advocacy efforts. OGR recognizes that medical liability issues continue to be a large concern for orthopaedic surgeons and is collaborating with other groups at both the state and federal level to devise creative solutions to the problem.

At the federal level, AAOS is a member of the Health Coalition on Liability and Access (HCLA), a national advocacy coalition representing physicians, hospitals, healthcare liability insurers, employers, healthcare providers, and consumers. In concert with HCLA efforts, AAOS supports and advocates for the following measures:

  • Good Samaritan Health Professionals Act (H.R. 865), a bill that would shield a healthcare professional from liability under federal or state law if the professional is serving as a volunteer in response to a disaster
  • Saving Lives, Savings Costs Act (H.R. 2603), a bill that would establish a framework for healthcare liability lawsuits to undergo review by independent medical review panels if healthcare professionals allege adherence to applicable clinical practice guidelines
  • Sports Medicine Licensure Clarity Act (H.R. 921), which would allow sports medicine professionals to practice with their sports teams when they travel across state lines without facing professional liability risk

AAOS is also very involved at the state level, because many aspects of medical liability—including liability caps, statutes of limitation, limits on attorney fees, mediation, and professional review—are regulated by the states. At the state level, AAOS helps identify legislators and other partners who support medical liability reform and assists with mobilizing AAOS members for grassroots action. AAOS also partners with orthopaedic society chapters in nearly every state to work through issues specific to that state.

In recent months, AAOS has helped to support Medical Injury Compensation Reform Act caps in California, publish liability studies for orthopaedic surgeons, and worked with the Texas Orthopaedic Association to create talking points on various topics.

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.