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

Laird Harrison


October 07, 2015

Most of the Time, Doctors End Up Not Paying

These lawsuits don't always prove expensive for the physician. Often patients or their attorneys change their minds after they learn more about the challenge of proving their cases, says Dr Troxel.

About 80% of all claims in all specialties close without any payment of indemnity to the patient, Dr Troxel says. Most of the rest settle. Of the few that go to trial, the jury finds in favor of the doctor about 80% of the time, he says.

Which is not to suggest that these doctors get off scot-free. The emotional and physical stress of undergoing a deposition or trial—a process that can take months or years—can be highly traumatizing, even for doctors who ultimately "win."

Most of the allegations arise when the patient's expectations differ from the patient's experience, says Dr Troxel, as in the example of the patient with foot drop and neuropathy.

Consent forms provide a good defense in a lawsuit. But the forms are long and filled with fine print, says Dr Troxel. Many patients sign without reading them.

Surgeons could often avoid the suits altogether if they talked with their patients more. "One of the things we recommend is that when a surgeon gives an informed consent, when they get a signature, they also take some time to explain some of the most common complications," Dr Troxel says.

Most surgeons intend to have these sorts of conversations, he adds, but often they feel too busy and let the process slide.

Reducing Your Risk That a Patient Will Sue

One technique for making sure that patients understand risks is to ask the patient to repeat in his or her own words what the surgeon has explained, says William J. Robb, III, MD, chair of the American Academy of Orthopaedic Surgeons' Patient Safety Committee. Several resources are available to teach this technique, variously described as "read back," "say back," or "teach back."[3]

In addition to collecting a signature, Dr Troxel recommends that physicians take their own notes on the conversation, carefully documenting what was discussed.

This has become more challenging in the era of electronic health records (EHRs), he says, because some of the software doesn't leave much room for such notes. In 2014, slightly less than 1% of The Doctors Company claims were related to EHRs. Physicians should take this into account when choosing EHR platforms or even keep their own records, he says.

Dr Robb, who is orthopedic director of the Illinois Bone and Joint Institute in Glenview, Illinois, emphasizes the importance not only of explaining the risks of a procedure but also of staying in contact with the patient throughout his or her care.

"If there is apprehension at any point because of an adverse event of any type, or anxiety or concerns felt by the patient or the family, that's a time when you have to establish communication again," he says. "That takes time and energy to do," he concedes, "but it's well worth it, not only to decrease the risk of litigation but just to provide good care to the patient and the family."

When problems arise, Dr Troxel recommends sitting down with the patient and the patient's family and reminding them of the conversation about risks that took place before the surgery. They may have forgotten details of a conversation that happened when the patient was in pain and contemplating surgery and anxieties among all concerned were running high.

"It's important to have an open discussion about what you're going to do to address the problems that arise from this complication," says Dr Troxel. "It's always good to have the conversation and not to downplay the problems."

Communication among the members of a surgical team can also avoid a lot of problems, adds Dr Robb. He recommends at least three sessions in which the entire team gathers to review the case: a "brief" prior to initiating an episode of treatment, a "time out" just prior to or during the treatment, and a "debrief" afterward.

The Doctors Company report cites several resources available to surgeons who want to improve their patients' safety and reduce the risk for lawsuits.[4] More resources on patient safety for orthopedists are available from the American Academy of Orthopaedic Surgeons.[5] To help educate patients on common orthopedic conditions, from back pain to rotator cuff disorders, WebMD is a good place to begin.

"If surgeons and their teams are focused on maintaining open and honest communication throughout the episode of care, even if there is an adverse outcome," says Dr Robb, "in most circumstances, litigation can be avoided, the outcome can be managed and corrected, and patients and their families are very accepting."


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