April 1996 Bulletin

A Minute with Malpractice

by Lynn Carol Gainer, MD, and K. Mason Howard, MD

As part of its ongoing analysis of claims against orthopaedic surgeons, the Academy's Committee on Professional Liability has reviewed 63 closed claims involving femoral neck failures. These claims produced $1,734,000 in indemnity payments to patients, even though only 17 of those claims resulted in payment; many thousands of dollars also were spent on the defense costs of the 17 paid claims and those which did not result in indemnity payments.

Problems encountered which led to the filing of a claim included: failure to diagnose, poor surgical performance, nonunion, infection, wrong side surgery, dislocation, falls from operating table, and avascular necrosis.

From this review, the committee was able to discern several recurring risk management concerns and recommendations for the practicing orthopaedist.

1. Failure to diagnose was the most frequent cause of claims. If plain films are not diagnostic, consider MRI; don't overlook associated injury, such as ipsilateral femoral shaft fracture; pay special attention to those patients at increased risk (metabolic bone disease, renal osteodystrophy); recall that fractures may result from seemingly minor traumas and/or overuse; be aware that a presenting complaint may actually be that of knee pain; and approach patients with prior arthritis/bursitis/sciatica cautiously, because they also may sustain a fracture and not differentiate the new pain.

2. Anger of patients (and family members) was commonly noted in these claims and usually attributable to an inadequate informed consent process. Consent discussion must be thorough, include family members, and should address treatment options and alternatives, risks of treatment and alternatives, and expectations regarding eventual functional recovery or impairment. This last topic is especially true with the elderly and their families as dependency issues may intensify due to this injury.

3. The claims studied show that several infections resulted from early conversion of internal fixation of fractures to prosthetic replacement, while the original wound was still healing. Careful evaluation of indications for reoperation is important; ideally, subsequent operations should be delayed until complete wound healing has taken place.

4. Following internal fixation, if nonunion is suspected but not detectable on plain films, establish the proper diagnosis through additional studies (tomography, etc.).

5. Claims of prior treatment led to many claims; no indemnity payments were made in these claims where this information was known, but the cost of defense in each instance is alarming. Criticism of prior care should be cautiously expressed, and then only after a thorough evaluation of prior records and films, and discussion of that care with the treatment physician (understanding his/her treatment rationale may soften your criticism). In addition, Physician Insurance Association of America experience indicates that many criticizing physicians are named as co-defendants in the subsequent lawsuits even though they have had no hand in producing the alleged injury.