AAOS Bulletin - August, 2005

Closed claim study 2004: Lessons relearned

By David D. Teuscher, MD

The AAOS Professional Liability Committee conducts an annual study of closed claims to determine trends in professional liability and opportunities for AAOS fellows to implement risk management and mitigation techniques in their clinical practice. The 2004 study reviewed closed liability claims against orthopaedic surgeons at the regional office of a national professional liability carrier that has considerable experience in orthopaedic underwriting and claims.

A unique aspect of the study was its focus on the relationship of adverse events and preventable errors to liability claims and their outcomes. The study was scientifically constructed to determine if avoidable adverse events could be decreased by systematically using programs to reduce preventable medical errors in orthopaedic practice that are already available from or in development by AAOS. Emerging consensus opinion indicates that, in assessing the root cause, the etiology of errors is a “systems failure” rather than a simple assignment of “blame and shame” or individual error.

We defined an adverse event as “an injury caused by medical management rather than the underlying condition of the patient.” Medical errors were grouped by common nationally recognized types and assessed by each reviewer. Data from 169 closed orthopaedic liability claims were reviewed. It was evident that clusters of adverse events and errors exist that lead to litigation, yet an adverse event could be identified in less than half the cases and a medical error could be identified in less than one third of the cases. Clearly, litigation can result from someone’s (typically the patient and family) erroneous perception of substandard care, even though objective review finds no error or adverse event. Fellows should regard many of these cases as communication failures; efforts to improve patient counseling and communication skills could benefit all concerned.

Our findings confirmed that there may be a need for diligence in certain practices and validated the AAOS communications and patient safety initiatives. Most adverse events with errors occurred with invasive procedures in the operating room. Although this may seem intuitively obvious, it is a reminder to exercise prudent care when treating patients in these settings. Errors during operative procedures included poor technical performance; unintended laceration, burn, or puncture of adjacent structures; falls; and equipment problems.

Existing safety protocols warrant use of practices that minimize or eliminate these risks of patient injury. There is opportunity for development and widespread pilot study of such protocols. Simple steps—such as ensuring that the guide wire is clean and fits into the cannulated drill before using it—help protect our patients and reduce our personal liability risk.

We discovered five cases of wrong-site surgery. Despite AAOS efforts to prevent this type of error, facilities and surgeons failed to use the protocol, the operative team failed to employ a “time out,” staff prepared the wrong site, and the surgeon incorrectly identified the spinal level intraoperatively. Protocols such as the AAOS “Sign Your Site” initiative and the subsequent Universal Protocol For Preventing Wrong Site, Wrong Procedure, Wrong Person Surgery™ developed by the Joint Commission on Accreditation of Healthcare Organizations are available to help prevent these avoidable errors.

Communications deficiencies comprise a complex and troublesome area ripe for improvement. Multiple causes of communication errors leading to adverse events were identified, including: doctor-to-doctor transition of care; doctor’s orders not being executed properly or on a timely basis; nursing documentation of a doctor’s failure to respond to potential complications; failure of the operative team to discuss intraoperative imaging or sponge count; and patient counseling issues, especially on scheduling follow-up and seeking reevaluation.

Several strategies could be used to reduce adverse events and liability risk, including the use of clearly written patient information on what to expect, when to follow-up, and what warning signs warrant urgent reevaluation. Verbal order confirmation may be considered burdensome, but its use should be considered, especially in complex situations and with conditions that have the potential to develop serious complications that require reevaluation and or emergent treatment. By personally making rounds with the nursing team and reviewing the written orders with the patient’s nurse, as well as using a read-back policy for phone orders, the orthopaedist may see improved execution of the treatment and contingency notification plans. The orthopaedic health care team looks to the surgeon for leadership and communication strategies that ensure checks and rechecks at critical points in the preoperative, intraoperative, postoperative and rehabilitation phases of the treatment program

AAOS has long promoted the development of patient communication skills as well as the use of patient safety initiatives. Many of us have benefited from the Bayer/AAOS Communication Skills Mentoring program, which is recommended for all. With the emphasis on patient-centered health care, it will be increasingly important for orthopaedic surgeons to improve communications with patients and their families, our colleagues and the entire health care team. If systems errors are truly the root cause of most medical errors and adverse events, we will need to incorporate systems engineering changes into our practices to ensure a culture of safety and manage liability risk.

The Professional Liability Committee is currently planning the 2005 closed claims study. We hope to expand its focus to examine and identify potential steps to reduce risk with new standard protocols to address repetitive preventable errors; specific efforts to educate fellows about preventable equipment-related errors; identify opportunities for technology to create “fail safe” or “forcing functions” to decrease occurrences of preventable errors; and identify common pitfalls in informed consent issues for specific procedures and clinical conditions. If you have suggestions for improving safe patient care and/or reducing liability risk, please bring them to our attention.

A note of thanks to Dr. Forese

The Professional Liability Committee and fellow editors of the Orthopaedic Medical Legal Advisor (OMLA) would like to thank Laura L. Forese, MD, MPH, for her service as OMLA’s first editor-in-chief. Dr. Forese is dedicated to elevating the public discussion on professional liability in a way that embraces the values of health care quality improvement, patient safety and enhanced communication.

Her leadership took OMLA from a concept, through the funding process and on to publication. OMLA became a forum for the provocative and controversial issues confronting orthopaedic surgeons who want to reduce their exposure to professional liability claims. Her editorial philosophy of identifying patterns of risk that result in orthopaedic professional liability exposure, defining requisite standards of care and guiding AAOS fellows in making legally sound clinical decisions leaves a lasting legacy.

We are pleased that she will remain active as contributor to future orthopaedic risk management articles in this new section of the Bulletin.

David E. Attarian, MD

Editor-in-Chief, Risk Management

David D. Teuscher, MD

Chairman, Professional Liability Committee


Orthopaedic risk management topics will now be covered within a special section of the Bulletin, with the Professional Liability Committee serving as its advisory board. Over-

seeing this section will be David E. Attarian, MD, Editor-in-Chief, and David T. Teuscher, MD, Managing Editor.

Contact this issue’s contributors/reviewers directly at: David Teuscher, MD at Teuscher@md.aaos.org, David E. Attarian, MD at attar001@mc.duke.edu, and Laura Forese, MD at foresel@nyp.org.

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