AAOS Bulletin - June, 2005

The Professional Liability Committee

Focus on risk management, closed claim studies and tort reform

By Susan A. Nowicki, APR

This is the first in a series of articles highlighting the work of AAOS committees.

Established nearly three decades ago, the Professional Liability Committee (PLC) is a vital part of the AAOS structure, particularly as tort reform dominates the orthopaedic landscape. The issues may have shifted slightly, but the PLC remains a focal point for orthopaedic surgeons looking for guidance and representation in the battle for tort reform and help in managing their personal liability risk.

Committee background

The PLC was founded in the late 1970s to advocate for and educate AAOS members on professional liability issues. Since then, it has served as an advocacy, research and advisory body on professional liability issues.

Members of the Professional Liability Committee (left to right): Richard A. Geline, MD; John H. Harp, MD; William J. Holt, MD; Donald Saltzman, MD; David D. Teuscher, MD; Douglas G. Smith, MD; Dennis H. Gordon, MD; Murray J. Goodman, MD; and Jerrald R. Goldman, MD. Not pictured are David E. Attarian, MD; Steven L. Haddad, MD; and Laura L. Forese, MD, MPH.

The PLC is charged with monitoring trends regarding professional liability and tort reform and serving as a support and policy-making resource for the AAOS Washington Office, the Academy’s department of socioeconomic and state society affairs and the Council on Health Policy. It develops appropriate organizational statements, programs, publications and products to serve the AAOS fellowship in the arena of professional liability. It conducts research, including the annual Closed Claims Study, to educate the fellowship on liability risks and strategies to mitigate and eliminate orthopaedic surgeons’ liability.

Staffed by both the AAOS General Counsel and Washington, D. C. offices, the PLC collaborates at all levels of the AAOS including the Board of Councilors (BOC), orthopaedic specialty societies, the Medical Liability Reform Oversight Committee and the Patient Safety Committee. The PLC is chaired by David Teuscher, MD, who took over after the distinguished tenure of Jack C. Childers Jr., MD.

PLC publications include Orthopaedic Medical Legal Advisor and member education articles in the AAOS Bulletin. All orthopaedic surgeons could use the information in the recently updated monograph, Medical Professional Liability: A Primer for Residents and Fellows.

Closed-Claim Studies

The PLC has conducted annual studies of actual professional liability claims for more than a decade. Beginning in 2004, the focus of these studies shifted to adverse events attributable to medical errors.

These studies identify systems and personal errors that could be addressed to reduce preventable medical errors and liability exposure for orthopaedic surgeons. Through analysis of closed-claim files of alleged orthopaedic malpractice from a specific insurance company over time, the PLC identifies injuries caused by medical management rather than by the underlying condition of the patient. Examples include medication errors, communication problems, wrong-site surgery and DVT prophylaxis.

Committee members look for the underlying factors that precipitated the claim. The information is scientifically tabulated by allegations of complaint into five basic categories—performance, prevention, diagnostic, medication and system. The most common errors are inadequate technical performance; lack of patient follow-up; failure to order an indicated test; failure to act upon or communicate the results of a diagnosis; failure to effectively communicate to a patient in advance the known risks of surgery or other treatment; avoidable delays; and failure to take precautions to prevent accidents.

“The committee will continue to focus on medical errors in future studies,” said Dr. Teuscher. “We hope that our experience will enable us to draw more useful conclusions that will provide orthopaedic surgeons strategies to avoid similar errors.”

The most recent closed claim study was conducted in November 2004; a summary of the results will appear in a future issue of the Bulletin. The committee will compare the data with existing patient safety protocols to see if an adverse events list for orthopaedics can be developed.

Expert witness

The PLC was active in helping develop the recently approved Professional Compliance Program (PCP), which includes an expanded Expert Witness Program and has educational, advocacy and disciplinary components.

The PLC served as an advisory resource to the Board of Directors Project Team that developed the new PCP and reviewed drafts of the Standards of Professionalism (SOPs) created for the new PCP, which were overwhelmingly by the fellowship (see related article on page 8). Even though the Expert Witness Program will now be transferred to the newly formed Committee on Professionalism (COP), the PLC will continue to work with the COP on issues of mutual interest.

The PLC will continue to educate AAOS fellows about serving as an expert witness with programs such as the expert witness instructional course lecture (ICL) at the 2005 Annual Meeting. The ICL, which included a mock trial, focused on how to ethically serve as an orthopaedic expert witness, from the orthopaedist’s own defense to separating opinion from fact. Moderated by Dr. Teuscher, the session also offered tips on serving as an effective expert witness (see related articles in the April 2005 Bulletin and "What not to do on the Witness stand" article of this issue).

OMLA

With the support of an unrestricted educational grant from Smith & Nephew, the Committee launched a quarterly publication in 2003 called Orthopaedic Medical Legal Advisor (OMLA). Covering a range of risk management topics, OMLA focused on identifying clinical risk situations that give rise to orthopaedic malpractice losses, and educating orthopaedists about strategies and risk management principles to help prevent the filing of claims and lawsuits.

“OMLA was both an educational tool and an interactive communications vehicle,” said Dr. Teuscher. Each issue contained sample case histories and gave readers the opportunity to express their opinions and ask questions through an online “What do you think?” feature. Hundreds of responses have been received over the past two years.

Dr. Forese, OMLA’s editor-in-chief, said, “We were gratified that OMLA enabled AAOS members to initiate frank discussions about professional liability risk situations and standards of care.”

With the expiration of the supporting grant, plans are to incorporate risk management topics into future issues of the Bulletin.

Future focus

Dr. Teuscher expects increased involvement with the Washington office on the AAOS liability reform effort. Areas of study include alternatives to the civil justice system for professional liability actions, expansion of medical liability insurance products and the practice of gain sharing. These issues were the focus of advisory opinions formulated by the BOC during their meeting in April.

“We are looking at alternative strategies to traditional tort reform,” Dr. Teuscher explained. “Caps are the time-tested foundation of reform but pilot projects and/or actuarial data for alternate options are being proposed and should be investigated. Some of these options include special medical liability courts, mediation, non-binding arbitration and pre-trial screening. Recommendations will be forwarded to the AAOS Board of Directors for action and dissemination to the Fellowship.”


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