April 2000 Bulletin

Review reveals common elements in malpractice

In its second edition of Managing Orthopaedic Malpractice Risk, the AAOS Committee on Professional Liability says it continues to find claims based on lack of informed consent. "We recognize that it is not possible for many patients to fully grasp all the implications of every possible eventuality, and even if it were possible, the patient will not remember a substantial portion of it several months later," the committee says. "Furthermore, it is often not practical for the surgeon to document every word said during the discussion. " Typically, in order to sustain a claim on the basis of lack of informed consent, the committee said the plaintiff must establish three things:

• Some item of information was not given.
• If the plaintiff had been given that information he/she (or the hypothetical ‘reasonable patient’) would not have consented.
• Harm resulted from giving the advice.

The first is difficult to defend, usually degenerating into a contest as to who the jury believes. If the surgeon thoroughly explains and documents at least one horrible outcome, the committee says the defense attorney has a powerful tool to attack the second.

The committee also continues to find claims for operating on the wrong site. The committee estimates "this occurred once in every 7,400 knee arthroscopies in 1992 despite what seem to many to be adequate safeguards." (The committee says there were an estimated 1.2 million arthroscopies in 1992.)

The committee believes the AAOS "Sign Your Site" initiative will reduce the number of wrong site surgeries and strongly urges every orthopaedist "to read the Academy’s statement and comply with it. The crucial factor is for the surgeon to see and speak with the patient on the day of surgery, and for the surgeon to mark the site while the patient is fully alert."

Failure or delay in the diagnosis or treatment also is a common case of litigation. The committee says there are two major types:

Trauma. The most frequent sites are cervical spine, femoral neck and syndesmotic injuries of the ankle. The committee warns, "Be especially wary when an injury in any of these areas looks worse clinically than can be accounted for on images."

Claims for damages due to postoperative complications. These are usually easily defended as recognized risk of the procedure unless there was a delay in diagnosing and treating the complications. The committee advises, "Be on guard against the natural human tendency to deny disagreeable events, and vigorously pursue diagnosis and treatments as soon as possible when there is any suspicion." Alternatively, the committee recommends including automatic triggers in the post-op orders.

The committee observes that an emerging source of claims is failure to diagnose Lyme disease, which can co-exist with other joint afflictions.

Complications under casts still occur. The committee recommends that all complaints under casts should be taken seriously and investigated aggressively and immediately. The committee also continues to find cases of medical record alteration.

The Physician Insurers Association of America (PIAA) reports almost 15,000 claims involving orthopaedic surgery in the years 1985-1998. Of the 28 specialty groups in the data base, orthopaedic surgery ranks fifth in the number of claims reported.

The number of closed claims involving orthopaedic surgery declined from 1,353 in 1988 to 1,195 in 1993 and 635 in 1998. The number of paid claims declined from 377 in 1988 to 368 in 1993 and 200 in 1998.

Source: Managing Orthopaedic Malpractice Risk, second edition