Medscape Orthopedist Malpractice Report 2021
A malpractice lawsuit is one of the most challenging experiences a physician will ever go through. Medscape's Malpractice Report 2021 surveyed more than 4300 physicians in 29 specialties who described why they were sued, how the lawsuit ended, and the impact of their ordeal on their practice and their relationship with patients. In this slideshow, orthopedists share their experiences — what was hardest, what sustained them, sources of resilience, what might have prevented the lawsuit, and what they learned going through the process.
(Note: Some totals in this presentation do not equal 100% due to rounding.)
Medscape Orthopedist Malpractice Report 2021
Orthopedists ranked third among physicians when it came to lawsuits, with 81% of orthopedist respondents reporting a suit compared with 51% of physicians overall. Similar to other physicians, more respondents reported being one of many parties named, rather than the only one in the suit. (Respondents could choose more than one answer.)
"Orthopedists are among the most vulnerable specialists, not quite as much as ob/gyns but certainly much higher than dermatologists, pathologists, or PCPs," said Paul Walker, a New York City–based malpractice attorney at Walker Medical Law, who represents physicians and other healthcare professionals.
Medscape Orthopedist Malpractice Report 2021
Complications from treatment/surgery was the most common reason for the lawsuit among over half of orthopedists. This was notably different from responses of physicians overall, in which failure to diagnose/delayed diagnosis was the most common reason for lawsuits (31%). The second most common reason for a lawsuit was poor outcome/disease progression, followed by failure to diagnose/delayed diagnosis. Of note, wrongful death was among the least frequent reasons for a lawsuit, in contrast to the overall physician respondents (13%).
"Orthopedics is a high-risk specialty because so often it's a subset of surgery, and there are a certain measure of complications that occur, even in the best of hands," said Peter A. Kolbert, JD, senior vice president, Claim and Litigation Services, Healthcare Risk Advisors, a division of TDC Group. "People are challenged when they suffer a complication, such as a foot drop or nerve damage, and look to the court for relief."
Medscape Orthopedist Malpractice Report 2021
This year, 52% of specialists reported paying under $20,000/year in malpractice insurance premiums and 11% reported paying $30,000/year or more. By contrast, 31% of orthopedists reported a premium of under $20,000, while almost a third paid $30,000/year or more. Despite paying more than other specialists, Medscape's Malpractice Premium 2019 report showed that about half of orthopedic surgeons felt that their premiums were reasonable.
"Part of the reason for the high premiums has to do with the amounts that end up getting settled," said Michael Suk, MD, JD, MPH, MBA, chair of the Musculoskeletal Institute and the Department of Orthopedic Surgery, Geisinger Health System, Danville, Pennsylvania. "Premiums tend to be reflective of the risk associated with surgical outcomes, which in orthopedics often have to do with disability, mobility, and function. Because those things aren't necessarily life-threatening, but instead they threaten quality of life, they are extrapolated over the patient's lifetime."
Medscape Orthopedist Malpractice Report 2021
The majority of orthopedists, similar to other physicians surveyed, were either "very" or "somewhat" surprised by the lawsuit. Part of the reason is that many were caught off guard by patients they hadn't treated personally. "I was part of a group of physicians treating the patient and I was dragged into the suit," one respondent wrote. Another said, "I never examined the patient. I was on call and answered the phone at about 1 AM to respond to a nurse's question about a medication. All healthcare providers were named as defendants."
One respondent described the surprise as the worst aspect of having been sued. Another wrote, "Receiving the notice, I was shocked. And the adjectives used to describe me and my care were atrocious."
Medscape Orthopedist Malpractice Report 2021
Most orthopedists said that they could have identified the patient, with figures comparable to those of overall physician respondents. "My sense is that most orthopedists are not shocked when a given patient brings a suit because the clues were there," says Suk. "Rarely does a patient come in and say, 'You're the best, Doc, now I'm going to sue you.' More frequently, the patient will have many questions and concerns about the outcome or long-term consequences of what they feel isn't an ideal outcome. Those are early clues that need mitigation."
Suk recommended making sure that communication between the office and patient is "timely" — for example, if the patient needs an extended parking disability card. "Patients shouldn't have to call the office 18 times to get something like that take care of. Helping them with insurance issues or trying at the front end to take care of some of the out-of-pocket expenses that they regard as unexpected — like providing durable medical equipment— or providing timely notes to an employer that they may need time off, will all demonstrate concern and responsiveness. Patients who are irritated by lack of response are more likely to seek recompense."
Medscape Orthopedist Malpractice Report 2021
Over three quarters of orthopedists felt that the lawsuit was not warranted, although some were unsure. Among physicians as a whole, 83% regarded the lawsuit as unwarranted and 11% were unsure.
"Most lawsuits are baseless, but some are warranted. The system for sorting that out is definitely broken. In my case, I was not responsible for the patient's death," one respondent wrote.
Medscape Orthopedist Malpractice Report 2021
The largest percentage of lawsuits were settled before trial, similar to the 33% of before-trial settlements reported by physicians in general in 2021. This was consistent with the 33% reported by orthopedists in Medscape's 2015 Malpractice Report: Why Orthopedists Get Sued.
Similar to findings in 2015, roughly a quarter of 2021 orthopedist lawsuits ended up in a trial, where the judge/jury determined the verdict, where a settlement took place, or where the case was dismissed by the court.
"My sense is that, by and large, the majority of suits are settled before trial. Often, it's viewed as cheaper or financially easier not going through a prolonged litigation that may result in some large dollar amount paid to the plaintiff. But if the physician and attorney decide to go to trial, they usually believe they have a strong case; and in those cases, the chances that the defendant will win are much higher," says Suk, who is the author of "I've Been Served…Now What?"
Medscape Orthopedist Malpractice Report 2021
Preparing for a lawsuit is very time-consuming, with upward of 40 hours as the most common amount of time spent by orthopedists, similar to physicians in general. One respondent wrote, "The worst part of the lawsuit was the amount of time and loss of opportunities to take care of my patients." Another said, "It had a great emotional toll, took time away from family/practice, and had economic consequences."
"Beyond just the number of hours — the hours associated with all of the legal work — are the hours spent on the emotional roller coaster, the sense of professional defeat, and those emotional aspects from the physician's side that are compounded on top of all of the legal work," says Suk. "And when a case drags on, that sense of injustice weighs heavily on the orthopedist who, for all intents and purposes, was trying to do the right thing. Those aspects of the malpractice process are often unspoken."
Medscape Orthopedist Malpractice Report 2021
Most respondents reported that the lawsuit took 1-2 years, similar to the 40% of overall physician respondents. However, close to a third endured a process that lasted 3-5 years, and some even longer than that, with one describing a process that dragged on for 10 years. In fact, the worst aspect of the lawsuit, to one orthopedist, was the "prolonged nature to get the lawsuit finished. It took too long, the dates rescheduled, and ultimately the case settled and yet I had booked out of office for weeks before the case was supposed to be in court." Another said, "It's a long, drawn-out process that weighs on you when you just want to move on with your life."
Attorney Dennis Hursh, of Physicians Agreement Health Law, based in Pennsylvania, says, "Cases can drag on for a considerable period of time. Now, because of the pandemic, some cases are taking longer than that because of the impact on the courts."
Medscape Orthopedist Malpractice Report 2021
Medscape Orthopedist Malpractice Report 2021
Roughly a third of orthopedists who were sued said they would have done nothing different, compared with 43% of physicians in general. A quarter said they would not have taken on the patient to begin with.
"Use your good judgment, and if you have a sense that a patient is litigious and the surgery in question isn't emergent, refer the patient elsewhere and suggest that he or she get a second opinion. I can't tell you how often I've heard doctors say, 'I knew from the beginning that this patient was trouble,'" says Charles Lohrfink, senior managing partner at Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, New York. "Clues might be questioning everything you say in ways that you feel whatever you say just isn't enough, or simply if you get an uncomfortable feeling about the patient."
Medscape Orthopedist Malpractice Report 2021
Similar to physicians in general, most orthopedist respondents felt that the outcome of the lawsuit was fair, although many believed that they had not been treated fairly.
For one orthopedist, regardless of outcome, the worst experience of the lawsuit was the overall unfairness of the process: "I did nothing wrong. I tried to help the patient, the surgery was successful, and that's the thanks I got." Another acknowledged that an error had taken place, suggesting that compensation for the patient was fair, but the suit was unfair because he had no part in the error.
Medscape Orthopedist Malpractice Report 2021
The largest percentage of orthopedists' lawsuits that were settled or decided in the plaintiff's favor saw a monetary award of up to $100,000, and the second largest up to $500,000. This was similar to the responses of physicians in general — although more plaintiffs received awards up to $1 million in orthopedic cases vs in other specialties (21% vs 15%).
A recent study shows that orthopedic sports medicine surgeons are "especially vulnerable to litigation, largely because of high patient expectations in the settings of complex surgeries." The authors note that even though intraoperative error was the most common reason for litigation, neurovascular injuries were associated with the highest payouts to plaintiffs (a mean award of $2.37 million). Another study suggests that pediatric orthopedic lawsuits are more likely to result in a larger payment to the plaintiff compared with adult procedures. "The differences are likely related to the sensitive nature of dealing with a child and that their potential for loss of productivity is higher," the authors wrote.
Medscape Orthopedist Malpractice Report 2021
More orthopedists than physicians in general felt that apologizing to the patient would not have averted a lawsuit (85% vs 79%). In 2015, the vast majority of orthopedists also did not feel that apologizing would have made a difference. But Suk believes that apologies are helpful, depending on how they are framed. "I come from the perspective that the nature of the apology isn't necessarily 'I'm sorry I did something to you,' but rather it's more about being empathetic to a patient's condition and recognizing that things could have gone differently, which humanizes the surgeon. And the closer you are to a person, the more difficult it is to sue him or her."
Suk noted that many states have "apology laws" that protect an apology from being used in a lawsuit to prove the innocence or guilt of the physician. And the empathy and caring you show are important, he says. "The birth of a lawsuit isn't only one catastrophic event. More often, it's death by a thousand cuts and the feeling that no one cares. The lawsuit is a surrogate for saying, 'I'm going to make someone care.'"
Medscape Orthopedist Malpractice Report 2021
Three quarters of orthopedist respondents did not feel that the lawsuit ultimately affected their overall medical career in a negative way. These responses are similar to those offered by physicians in general. But many lamented the ongoing requirement to report the lawsuit — even if it was dismissed — to credentialing committees on an ongoing basis for decades after the lawsuit. "I have to constantly bring it up for credentialing and it's a 'black dot' on my record, despite no wrongdoing," one wrote. And some complained that the mere fact of having been sued resulted in increased malpractice premiums.
Nevertheless, "in today's litigious society, a single lawsuit or even two aren't necessarily looked at askance by credentialing committees, especially if you're in a specialty in which lawsuits are common," says Hursh. "But payers will look at the multimillion-dollar judgment or a pattern of repeated lawsuits."
Medscape Orthopedist Malpractice Report 2021
Similar to the overall population of physicians surveyed in 2021, a little over half of orthopedists said that nothing changed for them following the lawsuit, while approximately one quarter said they trust patients less. In 2015, 34% said they no longer trusted patients and treated them differently. "I have become more leery of patients," wrote a respondent. "I am more aware of potentially adversarial interactions," said another. Of note, another respondent described the opposite effect. "I continue to provide the best care for my patients and I enjoy my patients."
One respondent said he more clearly outlines the risks of procedures to patients prior to procedures." Suk calls this "extremely important" because one of the reasons orthopedic surgeons get sued is "a mismatch between the patient's expectations of the outcome and what is realistic to expect. The more the orthopedist manages those expectations, the less the likelihood that the patient will be disappointed."
Medscape Orthopedist Malpractice Report 2021
Like respondents from other specialties, almost no orthopedists were named in a lawsuit for a COVID-related allegation. "The US has seen an enormous number of COVID-19 infections and a terrible number of COVID-19 deaths, but we have not seen a lot of lawsuits specifically around COVID-19 so far," said Kolbert. "Part of the reason is state-based qualified immunities from claims dealing with the prevention, diagnosis, or treatment of COVID-19. These immunities have raised the bar for someone to bring a claim, because they recognize that the standard of care, in terms of COVID-19, is evolving on a daily basis."
"Additionally," said Lohrfink, "COVID has served as a deterrent to filing lawsuits because American citizens are so grateful to healthcare providers and the medical community who have worked themselves to the bone to save lives of patients during COVID. Plaintiffs' attorneys are very mindful of that. They don't want to deal with juries who feel grateful for what the medical community has done during COVID."
Medscape Orthopedist Malpractice Report 2021
Similar to physicians in general, few orthopedists were named in a lawsuit for an action committed by an NP or PA. However, the roles of these clinicians are expanding in orthopedics, as in other areas of medicine, says Suk. "It's all about making sure that the supervision you provide is appropriate and that any PAs or NPs working for you have received appropriate education and training. Since laws regarding the role and scope of NPs and PAs and the supervisory relationship vary from state to state, you should be aware of what your state requirements are and abide by them."
Lohrfink agreed. "We have seen many cases, especially within orthopedics, where an NP saw the patient but the physician had to cosign the notes. Both the NP and the physician were listed as defendants. There really needs to be a true level of supervision and understanding on a daily basis of what the NP or PA has done with each patient. If you simply go over cases on a weekly or monthly basis, much will fall through the cracks."
Medscape Orthopedist Malpractice Report 2021
Almost all respondents were not concerned. However, says Suk, the pandemic has had an unexpected effect because many orthopedic surgeries have been canceled and some patients might hold the orthopedic surgeon accountable for not having conducted the procedure. "This has nothing to do with the surgeon and has more to do with what COVID has done to the healthcare system and our ability to respond to elective surgeries."
He added, "At the back end, when we start to catch up, some patients may be in a situation where they waited a long time for surgery, but the optimal operative condition has deteriorated. By the time the surgery has taken place, there has been further deterioration of the patient's condition. So there might be a rebound in lawsuits because of procedures that were delayed."
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