2005 closed claims study: A search for avoidable errors
By David Teuscher, MD
The AAOS Medical Liability Committee (formerly the Professional Liability Committee) annually reviews closed orthopaedic liability claims to determine trends in professional liability and oppportunities for AAOS fellows to implement risk management and mitigation techniques in their clinical practices. This year’s review of 150 closed orthopaedic liability claims was conducted in November at the regional office of a national insurance carrier.
The scientifically constructed survey instrument was revised from the 2004 study and tested for interobserver validity. It was designed to identify adverse events and potentially preventable medical errors. An “adverse event” was defined as an injury (physical, financial or other) resulting through the course of medical treatment, as opposed to the underlying disease process. A “medical error” was defined as an unintended health care outcome caused by a defect in the delivery of care to a patient. Errors may be acts of commission (doing the wrong thing), omission (not doing the right thing) or execution (doing the right thing incorrectly).
The results were similar to previous studies in several ways. In most cases, the defendant was the primary surgeon (91 percent) and the operating room was the most common setting (63 percent). Allegations were primarily treatment-related (70 percent) or complication-related (32 percent).
Although the great majority of filed cases were dropped or dismissed, one third of the claims were settled with an average payment of $137,000 and legal fees of $16,000. Only eight cases went to trial, and the defense won all but one. Although it is comforting to know that physicians usually win at trial, the emotional burden on those involved in such cases is heavy.
Reviewers found negligent care in 28 percent of the cases. In 20 percent of the cases the negligence was directly attributed to the surgeon’s care and in 8 percent it was indirectly attributable to the surgeon’s care. Most of these cases were operative malperformances that resulted in patient injury. Orthopaedic surgeons should be mindful that the operating room and the sharp objects in our hands can be hazardous to our patients. Renewed vigilance in those settings is encouraged.
The cases classified by the reviewers as patient injury/medical errors were subclassified as: known complications of treatment (47 percent), surgical error (28 percent), patient factors (24 percent) and surgeon knowledge (16 percent). Each of these categories was similarly represented in previous closed-claim studies.
Claims related to complications and patient factors could involve communication errors as a significant and preventable factor. Best practices would dictate that potential complications and the patient’s unique medical risks and compliance should be discussed preoperatively as part of the informed consent process.
Timely order and follow-up on test results comprised the bulk of the surgeon knowledge issues. Each office should have a policy to ensure prompt scheduling, review and patient counseling for all testing and consultation results.
Although they accounted for a small percentage of total errors, communications (5 percent), imaging (5 percent) and medication errors (3 percent) are all avoidable errors that lead to adverse events. These situations appear to offer fertile ground for improving patient safety and limiting litigation risk—laudable twin goals.
Communication difficulties centered around patient instructions, legibility and verbal communications between health care providers. Strategies to prevent these errors include:
• Using a read-back policy on verbal orders
• Reviewing written orders with nursing staff
• Confirming that imaging studies are marked and identified with the correct name and laterality
• Taking time to communicate the patient’s unique condition when transferring a patient to a colleague
• Ensuring written instructions for warning signs that would warrant expeditious patient follow-up
The use of computer order entry for medication orders continues to be developed and should be embraced for the patient safety potential it offers.
Regrettably, wrong-site surgery accounted for an additional 3 percent of the medical error cases. The AAOS and its Patient Safety Committee have been national pioneers in developing awareness and preventive measures of wrong-site surgery, yet our annual study continues to discover instances of wrong-site surgery occurring without the use of the Universal Protocol.
Failure to use the standard “Sign Your Site” and a time-out to identify the operative site before incision makes these cases virtually indefensible. The extra time you spend with the patient to confirm the operative site and mark it shows you care and may earn you the patient’s confidence if an optimal outcome is not realized.
Errors in the informed consent process accounted for only 2 percent of the cases. Yet the Medical Liability Committee believes the impact of this factor is underestimated and that tremendous potential exists for improving patient safety and satisfaction with a modern informed consent process. Satisfied patients are rarely litigious. Patient education materials available through the AAOS and other sources include DVDs and Internet- and print-based materials.
The Medical Liability Committee is undertaking a project to further refine and develop patient-centered informed consent processes that will truly educate the patient and the patient’s family of the risks, benefits, options, expectations, complications and expected outcomes of an orthopaedic health care decision. The process must include an opportunity for the patient’s questions to be answered in a calm environment, followed by the proper legal documentation of the extended nature of the informing process leading to consent. If you use such an informed consent process, please share it with us. We wish to model our products based on the best practices available.
David Teuscher, MD, serves as chairman of the AAOS Medical Liability Committee. He can be reached at Teuscher@md.aaos.org