How Orthopedists Can Get off the List of Most-Sued Doctors

Laird Harrison


October 07, 2015

A Confused Patient Is a Prospective Litigant

In an all-too-common scenario, a patient visits an orthopedic surgeon complaining of, say, hip pain. After all conservative treatment options have been tried—and failed—the patient is back.

The surgeon says, "It's time to consider a hip replacement."

The patient resignedly agrees.

"Of course, there are some risks," the surgeon adds. He briskly runs down the list. "Any questions?"

The patient looks at him. He doesn't respond. Does he understand what the surgeon just said? Who knows? It's impossible to tell.

The surgeon glances at his watch. He has a busy schedule. The clock is ticking. So he doesn't query further. Instead, he takes the lack of a response as a yes: The patient understands the risks.

"If there are no questions," the surgeon continues, "my nurse will give you a consent form to sign, and we'll schedule the procedure for next week."

The patient then signs the form without clearly understanding the risks of the procedure. The surgery is performed. It goes well. However, 3 weeks later, the patient complains of right foot drop and peroneal neuropathy. The surgeon had mentioned both as possible adverse events. Both are listed as risks on the signed consent. No matter. The patient sues the doctor for malpractice.

Most Orthopedists Can Expect to Be Sued

If you practice orthopedic surgery long enough, the odds are good that someone will hit you with this sort of lawsuit, says pathologist David B. Troxel, MD, medical director of The Doctors Company in Napa, California, the nation's largest insurer of physician and surgeon medical liability.

In 2014, patients and families filed malpractice lawsuits against 18% of orthopedic surgeons, he says. According to a 2011 study, orthopedics is the fourth most sued specialty, after neurosurgery, cardiothoracic surgery, and general surgery.[1]

The good news is that the rate of lawsuits has been declining across all specialties since 2008, says Dr Troxel. But, he adds, far more liability suits could be prevented if orthopedists took the time to maintain good relationships with their patients.

In a new study of claims against more than 2100 orthopedists, The Doctors Company analyzed the most common types of claims and, based on these findings, developed recommendations for avoiding them.[2]

The researchers characterized 46% of allegations against orthopedic surgeons as "improper performance of surgery."[2]

"That's kind of a shocking number," says Dr Troxel. "But what was kind of reassuring is that when the claims were reviewed by the experts we contracted, in the overwhelming number of cases, the complaint resulted from a known complication that had been disclosed to the patient in the informed-consent process."

Procedures Most Likely to Spark a Lawsuit

According to the study, procedures that led to allegations included total knee replacement, total hip replacement, knee arthroscopy, vertebroplasty, open reduction internal fixation, diskectomy, exploration and decompression of the spinal canal, shoulder arthroscopy, and rotator cuff repair.[2]

Sixteen percent of allegations were characterized as "improper management of surgical patient."[2] These claims related to postoperative care. They included infections, malunion or nonunion of bones, continued pain, or mechanical issues of orthopedic devices.

Thirteen percent were "diagnosis related."[2] Among the conditions most commonly alleged to be misdiagnosed were compartment syndrome, fractures, nonunion of fractures, hematomas, postoperative infections, malignant bone tumors, thromboembolism, and dislocations.

The Doctors Company also looked at specific factors contributing to patients' injury. They found that technical performance was the cause in 35% of the cases.[2] Poor technique and misidentification of anatomic structure were factors in some of these complaints. But "only a small percentage," the study concluded, were due to substandard care, and often the injury was a known risk of the procedure.

Twenty-nine percent of injuries resulted from "patient factors," the study found.[2] In one example, a patient suffered an ankle fracture with displacement of the talus and disruption of the ankle mortise. Because of comorbidities and the need for medical clearance, the surgery was postponed. The patient was prescribed physical therapy to reduce edema but refused to participate.

Two days later, the patient died of a pulmonary embolism. The family alleged that the injury was improperly managed. But the physical therapist, surgeon, and nursing staff had clearly documented the patient's refusal of physical therapy.

Twelve percent of injuries resulted from selection and management of therapy.[2] In some cases, the reviewers found that patients were not good candidates for the procedures they had. In other cases, the practitioners failed to order the correct medication or used inappropriate procedures.

Another 12% of injuries resulted from poor communication, sometimes because of language barriers, inadequate discharge instructions, inadequate follow-up instructions, or insufficient information regarding the risks of medications.[2]

A final 12% of injuries resulted from "patient assessment issues," such as failure or delay in ordering diagnostic tests, failure to establish a differential diagnosis, misinterpretation of diagnostic studies, failure to respond to a patient's repeated concerns or symptoms, failure to consider clinical information available in the medical record, or failure to address abnormal findings.[2]


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