January 1996 Bulletin

A Minute With Malpractice

by Dennis B. Brooks, MD

During the past several years, the Academy's Committee on Professional Liability has analyzed data from insurance closed claims for nine commonly performed orthopaedic surgical procedures. They included foot and ankle surgery, spinal fusion, total hip arthroplasty, and knee arthroscopy. Members of the committee reviewed the files at the home office of several malpractice insurance companies and analyzed data supplied by Physician Insurers Association of America from its database. This article presents some general conclusions drawn from this data.

The data was derived from the closed claims for 20 companies that reported 351 claims for the procedures that were studied. The study period varied for each company ranging from six to 15 years. The companies insured 93,810 physicians, although the number of orthopaedic surgeons was unknown. For these claims, the defendant was an orthopaedic surgeon 81.6 percent of the time. When board certification was known, 82.3 percent of orthopaedic surgeons were board certified. Physician impairment was not a factor, because less than 1 percent of the defendants were considered impaired.

Seventy-five percent of the defendants had a past history of malpractice claims. These physicians averaged four prior claims. The companies did not indicate whether the prior claims arose from the physician's performance of the same procedure that resulted in the index claim.

An analysis of the 351 claims revealed that the most common allegation of negligence was "poor surgical performance by the physician." This was alleged to have occurred on 141 occasions. The next most common allegations were: failure to diagnose the patient's condition (61), failure to treat a complication properly (59), failure to diagnose a complication (44), infection (40), and a technical complication (30). The remaining allegations, such as misdiagnosis, procedure was contraindicated, and surgery on the wrong body part, occurred on less than 18 occasions.

Defending an orthopaedic surgeon who performed spinal surgery resulted in the largest average defense cost of $49,837. This cost was more than twice that to defend the next most costly procedures, spinal fusion, and total hip replacement. The cost to defend claims that arose from foot and ankle surgery, total knee replacement, or carpal tunnel surgery were approximately $18,000. The least expensive procedures to defend were knee arthroscopy, $7,500; and treatment of tibia fractures, $3,500.

Spine surgery also resulted in the highest average indemnity payment to patients who were successful in their malpractice claims. This was $431,455 compared to $195,000 for spinal fusion and $154,000 for total hip replacement. For treatment of hip and femur fractures, foot and ankle surgery, and carpal tunnel surgery, the indemnity payments ranged from $108,000 to $91,000. The lowest indemnity payments were total knee replacement, $24,000; knee arthroscopy, $10,000; and treatment of tibia fractures $9,000.

When the cost to defend a malpractice claim and the indemnity payment to a claimant are both considered, several factors are evident. Claims resulting from spine surgery and spinal fusion generated the highest defense costs and the highest payments. Claims resulting from knee arthroscopy and the treatment of tibia fractures generated the lowest defense costs and the lowest indemnity payments. Either form of spine surgery is associated with a significant potential risk. Although the costs and payments for arthroscopy and tibia fractures were the lowest, these procedures should be taken as seriously as all other orthopaedic procedures.

An analysis of the history of these 351 claims revealed the majority of the time the claim was resolved before trial. The analysis found that 30.8 percent of the claims were dismissed, 26.2 percent were withdrawn, and 31.3 percent were settled, although the data did not indicate whether settlement occurred before, during, or after trial. For all the claims, 9.1 percent resulted in a defense verdict and 2.6 percent resulted in a plaintiff verdict.

It is generally assumed that both the plaintiff and the defendant require an expert witness to evaluate and testify on their behalf. However, for the recently-reviewed claims, an expert was identified in only 47 percent of the claims where the presence or absence of an expert was known. When the specialty of the expert was known, 77 percent of the experts were orthopaedic surgeons.

The Academy's Committee on Professional Liability is developing a handbook that delves more completely into the claims and results mentioned in this article. Managing Orthopaedic Malpractice Risk, which will be available at the Academy's Annual Meeting, also includes management tips to help prevent malpractice claims. The publication is priced at $20 for Academy members and $25 for nonmembers. To order, contact the Academy's customer service department, (800) 626-6726.

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