Medical liability risk in pediatric trauma care
By Charles T. Price, MD
Management of fractures is a common source of orthopaedic medical liability claims in the pediatric and adolescent age group. A review of 15 years of claims data from the Physicians Insurers Association of America (PIAA) indicates that management of fractures accounts for approximately 77 percent of orthopaedic claims for patients under the age of 18.1 Compartment syndromes are listed in a separate category and account for 2 percent of claims in this age group, with the remaining 21 percent of claims arising from management of spine problems, neoplasms and nonspecific anomalies.
Fortunately, almost 75 percent of all orthopaedic claims for patients under the age of 18 are eventually settled in favor of the physician. When claims do result in payments by the physician, the amounts paid for fracture care are much lower than those for damages related to spine problems or neoplasms. Thus, claims related to fracture care are much more frequent, but often result in lower payments, than other aspects of pediatric and adolescent orthopaedic surgery.
This article will examine medical liability claims in pediatric trauma care, identify potential risk factors and discuss some pitfalls in fracture management. Hopefully, this will help decrease liability exposure and improve patient care.
Fracture location affects liability risk
Table 1 shows the frequency of different fractures compared to the frequency of liability claims for those groups of fractures. Lower-extremity fractures in children and adolescents have a disproportionate risk of litigation compared to the overall frequency of those injuries. Femur fractures are especially notable. Just 5 percent of fractures involve the femur, yet these account for nearly one-third of fracture-care medical liability. Ankle fractures account for only 2 percent of fractures, but represent 7 percent of fracture liability claims in children and adolescents.
Table 1. Medical liability claims risk compared to fracture risk among patients under the age of 18. Source: Physicians Insurers Association of America (PIAA) Data Sharing Project
Orthopaedics: historically high risk
Who is at risk for malpractice litigation in orthopaedic surgery? Essentially, all orthopaedic surgeons are at risk. The first case of medical liability litigation ever recorded was in 1374 and involved an orthopaedic procedure on the hand. Orthopaedic conditions accounted for 70 percent to 90 percent of medical liability claims during a malpractice crisis in the middle of the 19th century.2 This trend has continued, with orthopaedic surgery routinely listed among the top 10 specialties for professional liability claims.
This doesn’t mean that orthopaedic surgeons are more ignorant, or more careless than other specialists. But the high risk of litigation indicates that residual disability for orthopaedic surgery patients can be highly visible and prolonged. Another possible factor is that orthopaedic surgeons who manage trauma are often required to make decisions in critical or uncertain situations for patients with whom they’ve had little personal contact. A study by Bellamy and Pearl stated that “Fifty-one and a half percent of the plaintiffs began their treatment relationship with the orthopaedic surgeon in the emergency room.”3
It’s clear that managing fractures increases exposure to medical liability claims. One “solution” to this problem might be to avoid trauma patients, but injury management is central to our specialty and managing fractures can be very gratifying. Other responses to the problem may include efforts to recognize and reduce sources of error, improve communication skills and support legislative efforts for tort reform.
Better communication = lower risk
Improving our communication skills may be the single most important step we can take to immediately reduce our personal exposure to professional liability claims. A study that appeared in the Journal of the American Medical Association found a direct correlation between the risk of medical liability legislation and the total number of unsolicited complaints in a medical practice.4 We don’t know if these unsolicited complaints reflect poor communication skills or poor business practices, but the higher the number of unsolicited complaints, the greater the risk for medical liability claims.
A second source of support for improved communication skills is the observation that women physicians are 1) generally more effective communicators, and 2) receive higher patient satisfaction scores than their male counterparts do.5 This may help explain why male physicians are three times more likely to be in a high-claims group than female physicians are, even when the numbers of claims are adjusted for patient volumes or complexity of practice.6
It has also been noted that a solo orthopaedic practitioner who employs a registered nurse (RN) in the office—rather than nonprofessional personnel—may be less likely to generate a liability claim than a solo orthopaedic surgeon who does not employ an RN.7
To enhance their communication skills, orthopaedists can take advantage of communication programs offered by the Institute for Healthcare Communication or the AAOS, or simply watch videotapes on communication skills in clinical practice.
The basic tips that follow may help enhance rapport with trauma patients:
• Allow enough time for effective communication.
• Acknowledge emotional distress.
• Personally obtain informed consent.
• Return phone calls.
• Respond to patient complaints.
According to the PIAA claims data, mismanagement could not be identified in 31 percent of the pediatric and adolescent fracture cases that had generated liability claims. Although good communication skills will not eliminate the risk of malpractice litigation, effective communication may reduce the number of frivolous lawsuits that result from mistrust or hostility.
Improper treatment, misdiagnosis
According to PIAA claims data, other causes of liability claims for pediatric and adolescent fracture include improper treatment (40 percent), missed diagnosis (14 percent), missed complication (4 percent) and wrong-site surgery (3 percent); 8 percent of cases were due to other causes.
Cast problems are frequently cited as “improper treatment,” but any awards to the plaintiff in these claims are usually small. Improperly applied casts may break, fail to control alignment, produce pressure sores or lead to saw injuries during removal. Inadequate initial follow-up is also cited as “improper treatment” that may lead to malunion. An article from the summer 2004 Orthopaedic Medical Legal Advisor addressed the responsibility of physicians to appropriately follow up on pediatric patients.
Certain injuries such as radial head dislocation associated with greenstick fracture of the ulna (Monteggia fracture-dislocation) and compartment syndromes that result from supracondylar fractures are common in cases that claim “misdiagnosis.” A surgeon must carefully inspect the joints above and below any fracture to avoid being misled by seemingly innocuous injuries. After a supracondylar fracture has been pinned, it’s important to document the circulatory status of the arm, splint the arm in less than 90 degrees of flexion and respond to pain complaints. If the median nerve has been injured, the patient may not experience the pain of a developing compartment syndrome.
Patients with multiple injuries will also frequently claim misdiagnosis. Whether these are major or minor injuries, the surgeon must carefully examine each complaint and personally review all radiographs. Reassessing the multiple-trauma patient a few days after the initial trauma is also a good practice. Spine and pelvic fractures are easily overlooked in patients with multiple injuries, and subtle hip subluxations or growth plate injuries may also be missed in the pediatric or adolescent age group.
Protect ourselves, patients
The fractures of most pediatric and adolescent patients heal uneventfully, and the patients are very grateful for the compassionate care they receive from orthopaedic surgeons. In a 2002 Harris Poll of trusted professionals, doctors were rated in the highest categories of trust along with firefighters and farmers. We are fortunate to be in a “trusted” profession, but we should be aware of medical liability risks and take steps to protect ourselves while doing all that we can to reduce errors and improve communication.
Charles T. Price, MD, is associate director of the orthopaedic residency program and director of pediatric orthopaedic education at Orlando Regional Healthcare System in Orlando, Fla.
1. PIAA Data Sharing Project: 1985–2000
2. Spiegel AD, Kavaler F. America’s first malpractice crisis. 1835-1865. J Community Health 1997;22:283-308.
3. Bellamy R, Pearl A. Analysis of Florida data on malpractice insurance and litigation in orthopaedic surgery. J Fl Med Assoc 1988;75:311-315.
4. Hickson GB: Patient complaints and malpractice risk. JAMA 2002;287:2951-2957
5. Roter DL, Hall JA. Physician gender and patient-centered communication: a critical review of empirical research. Ann Rev Public Health 2004;25:497-519.
6. Taragin MI, Wilczek AP, Karns ME, Trout R, Carson JL. Physician demographics and the risk of medical malpractice. Am J Med 1992;93:537-542.=
7. Adamson TE, Baldwin DC Jr., Sheehan TJ, Oppenberg AA. Characteristics of surgeons with high and low malpractice claims rates. West J Med 1997;166:37-44.
Recommended reading: Managing Orthopaedic Malpractice Risk, 2nd Edition. Rosemont, Ill: AAOS Committee on Professional Liability, 1999