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Study: How Orthopedists Can Prevent Lawsuits

Jessica Mehta • Thu, April 20th, 2017

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“Most orthopedists can expect to be sued.” This was a (literally) bold statement made by journalist Laird Harrison on the Medscape Orthopedics blog. While it might sound alarmist, it’s also drenched in truth—orthopedic doctors are the fourth most sued doctors in the industry according to research from The Doctors Company. The good news? “Doctors almost never pay,” says Harrison. The Doctors Company produced a massive survey in 2014 with insight from 2,100 orthopedic doctors to highlight why lawsuits happen and how to prevent them, lawsuits go from the simplest things just as in work discrimination, but it is important for you to be prepared to handle it.

The Doctors Company’s mission has been the same for 40 years: “to relentlessly defend, protect, and award doctors and to advance the practice of good medicine.” As part of their mission, the company analyzes over 76,000 member experiences on a regular basis. For this study, 1,895 lawsuits against orthopedists between 2007 and 2014 were studied in order to “better understand what motivates a patient to pursue a claim and to gain a broader overview of the system failures and processes that resulted in patient harm.” It includes more than 2,100 orthopedists. The full study results can be found here.

There’s no denying that orthopedic surgeons, and their patients, are handling higher risks than a general family physician or a dermatologist in most cases. Patients don’t always understand the risks they’re told, sometimes signing forms without full comprehension before a surgery. Even when all of the risks are explained, both verbally and in writing, if a patient feels a surgery wasn’t “successful” (which in itself is highly subjective), there’s nothing stopping them from filing a malpractice lawsuit.

Or is there?

According to pathologist David B. Troxel, M.D., company medical director, anyone practicing orthopedic surgery long enough is bound to get sued. He’s also the medical director for The Doctors Company and was a co-author for the company’s “Orthopedics Closed Claims Study: An Expert Analysis of Medical Malpractice Allegations Against Orthopedists.” Along with his colleagues Darrel Ranum, J.D., CPHRM and Robin Diamond, M.S.N., J.D., R.N., Dr. Troxel found that 18% of orthopedic surgeons were sued for malpractice in 2014. Orthopedics is behind only neurosurgery, cardiothoracic surgery and general surgery when it comes to sheer amount of lawsuits.

Risky Business

The Doctors Company is based in Napa, California, and is the biggest physician/surgeon medical liability insurer in the country. Dr. Troxel points out that overall, lawsuits are declining in all medical specialties, but he’s sure many more could be prevented. The key? Helping orthopedists develop positive, honest relationships with patients. Of course, this is easier said than done.

The vast majority of lawsuits against orthopedic surgeons are due to “improper performance of surgery.” Dr. Troxel says, “That’s kind of a shocking number. 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.” While this might be soothing to the orthopedic surgeon, and certainly helps them get lawsuits dropped, it points to a glaring disparity in the doctor-patient relationship. Although the doctor might have warned about the risks and explained them in full, along with the written consent forms doing the same, even if a patient says they understand, that doesn’t mean they do. It also doesn’t mean the information has been fully digested. Patients are scared, surgeons are busy, and this creates the perfect storm for miscommunication.

After “improper performance of surgery,” the most common complaint that leads to a lawsuit is “improper management of surgical patient.” This refers to post-operative care and might include nonunion of bones, infections, mechanical problems with orthopedic devices, continued pain, and so on.

Most Likely to Sue

The Doctors Company survey revealed that the most common procedures that lead to a lawsuit are:

  • Discectomy
  • Exploration and decompression of the spinal canal
  • Knee arthroscopy
  • Open reduction internal fixation
  • Rotator cuff repair
  • Shoulder arthroscopy
  • Total hip replacement
  • Total knee replacement
  • Vertebroplasty

Another 13% of complaints are “diagnosis related.” Plaintiffs who claim misdiagnosis most commonly refer to fractures, postoperative infections, compartment syndrome, dislocations, malignant bone tumors, nonunion of fractures, and thromboembolism. The survey dug deeper, looking for key factors that might effect a patient’s injury. In 35% of cases, technical performance was a factor. In some cases, “misidentification of anatomic structure” and “poor technique” were cited. Just a small percent were due to “substandard care,” and in those cases it was almost always listed as a known risk.

A large amount of injuries were caused by “patient factors” at 29% according to the survey. In one case study, a patient was prescribed physical therapy to prevent edema when a surgery was postponed, but refused. When the patient died from a pulmonary embolism, the family sued for “improper management.” However, with the orthopedic surgeon, physical therapist, and a host of nursing staff documenting the physical therapy prescription—and patient refusal—that lawsuit didn’t go very far.

According to the survey, 12% of injuries happen because of lack of communication. Particular barriers include language, poor discharge information, lack of follow-up instructions, or lack of information detailing medication risks. Each of these obstacles may fall partially under both the medical professional’s and patient’s responsibility. Finally, 12% of injuries are rooted in “patient assessment issues” like not citing a differential diagnosis or delaying diagnostic tests.

So Sue Me

Dr. Troxel found that most of the time, patients (or their attorneys) decide not to continue with a lawsuit once they find out how difficult it is to actually prove their claims. He says 80% of lawsuits end without the patient receiving any indemnity payments. The remaining 20% usually settle. Only a handful go to trial, and when that happens the jury sides with the doctor in 80% of cases. These numbers might seem initially comforting to orthopedic surgeons, but they don’t come without a price.

The stress and toll of facing a lawsuit and trial can be severe. Even if the case is dropped, settled, or a jury sides with the doctor, it can take years to come to an end. Is it really a “win” when the process can be traumatizing to the doctor?

Ultimately, Dr. Troxel says most lawsuits are filed because a patient’s expectations don’t match their experience. Consent forms are gold for a doctor involved in a lawsuit, but it’s not a secret that they’re full of confusing, fine print for many patients. Dr. Troxel says, “When a surgeon gives an informed consent, when they get a signature, they [should] also take some time to explain some of the most common complications.” A lot of doctors mean to have these talks with patients, but time is often lacking. However, it’s a critical step in avoiding lawsuits according to Dr. Troxel. He also recommends that doctors make notes about the conversation as part of their documentation.

Prioritizing these dialogues can prevent massive stress for doctors in the form of a lawsuit. The chair of the American Academy of Orthopaedic Surgeons’ Patient Safety Committee, William J. Robb III, M.D., recommends having patients repeat in their own words the risks and complications explained by the doctor. This technique is often called “read back” or “teach back.”

Notetaking Nightmares

Having patients read back and taking additional notes is a huge help, but there’s an issue: Electronic health records (EHRs).

The technology is designed to clarify and speed up the administrative side of medical offices, but they don’t leave a lot of room for extra notes. The Doctor Company reports that less than 1% of claims involve EHRs, likely because they’re so stringent there are no room for errors. That sounds like good news, but not when you consider they’re so tight doctors and medical staff might not be able to customize or optimize them. Dr. Troxel says physicians should consider note-taking capacity when shopping for EHR technology.

Oftentimes, doctors have to take documentation into their own hands, especially if their EHR is stingy with such space.

Dr. Robb, who is the orthopedic director at the Illinois Bone and Joint Institute (Glenview, Illinois), says it’s not enough to fully explain risks and procedures to patients. Doctors should also follow up with patients in every stage of their care plan. “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. That takes time and energy to do, but it’s well worth it, not only to decrease the risk of litigation but just to provide good care to the patient and family.”

It also might be possible to prevent someone from filing a lawsuit simply by sitting down with them. Remind them of prior conversations around risks and complications, recommends Dr. Troxel. Sometimes, details are simply forgotten, especially if the patient was worrying over surgery, anxious, or even in pain at the time. Communication is critical within the medical team, too. Dr. Robb suggests a minimum of three sessions with the entire team including a before briefing, a time out just before or during treatment, and a debriefing. “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, in most circumstances litigation can be avoided,” says Dr. Robb.

The study urges orthopedic surgeons to follow established, reputable guidelines in order to maximize patient safety and avoid lawsuits. These guidelines include the Association for Professionals in Infection Control and Epidemiology’s “Guide to the Elimination of Orthopedic Surgical Site Infections” since infections are the most common risk in orthopedic surgery according to the study, the American Academy of Orthopaedic Surgeons’ “Evidence-Based Clinical Practice Guidelines,” and the American Academy of Orthopaedic Surgeons’ “Evidence-Based Medicine Information.”

For the fastest and most efficient avenues for risk mitigation, the survey recommends:

  • Always determine that a patient is indeed a good candidate for a procedure
  • Documenting conversations with patients, including taking your own notes
  • Ask patients and/or their family’s to “read back”
  • Clearly describe risks if a patient chooses not to follow instructions, and document those conversations
  • Implement ongoing surgical team trainings
  • Always follow best clinical practices
  • Establish at least three medical team briefings including a before, right before/during surgery, and a debriefing

Preventing and addressing lawsuits is, unfortunately, part of life for an orthopedic surgeon. However, armed with the right information and tools, it can be easy to minimize lawsuits—as well as the stress and trauma they tend to drag along with them.

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