Why do orthopedic surgeons get sued?

By Charles A. Pilcher MD FACEP
February, 2017

In 2014 approximately 18% of orthopedists insured by The Doctors Company were named in a claim or a suit. To better understand what causes patient harm, what motivates a patient to pursue a claim and to learn from the analysis, Darrell Ranum, David Troxel and Robin Diamond studied and published a summary of closed claims against orthopedic surgeons. The study analyzed 1,895 claims from 2007–2014 and focused on:

  • an overview of the most common types of claims
  • expert insights into the specific elements that led to patient injury and
  • mitigation strategies

Here is a summary of the findings of that study:

Three allegations accounted for 75 percent of claims:

  • 46% improper performance of surgery, usually due to an outcome that differed from the patient’s expectations. Substandard care was present (according to expert reviewers) in only a small  percentage of injuries. Example: A patient had foot drop and peroneal neuropathy following a hip replacement, but the risk had been discussed and documented by the surgeon pre-0p.
  • 16% improper post-op management, including infections, nonunion, pain, etc. that delayed recovery or required further procedures.
  • 13% diagnosis related (failure, delay, or wrong), such as compartment syndromes, fractures, hematomas, infections, cancer, etc. Example: Compartment syndrome resulted in loss of function below the elbow after a surgeon left a cast on the arm for 24 hours despite documenting no pulses.

The major factors contributing to patient injury were:

  • Technical performance (35%) was most common. Reviewers found that most claims in this category were related to known risks disclosed to the patient prior to the procedure, not sub-standard care.
  • Patient factors (29%) e.g., dissatisfied patients. Examples included patients who sought other providers rather than giving the treating physician an opportunity to address concerns in follow-up and patients who did not follow the treatment plan, both of which were associated with poor communications between  patient/family and doctor. Example: A patient refused to participate in pre-op physical therapy to decrease edema and died of a pulmonary embolism.
  • Selection and management of therapy (12%) including patients who were not suitable for the procedure performed, or poor medication choices, e.g., failure to use prophylactic antibiotics following diskectomy.
  • Poor communication (12%) between patient/family and provider, e.g., inadequate informed consent, poor rapport, language barriers, poor follow-up instructions, etc.
  • Patient assessment issues (12%), e.g., delay in ordering or mis-interpretation of tests, inadequate differential diagnosis, failure to address a patient’s concern, etc.

The authors observed the following about these claims:

  • Patient allegations were often associated with a complication disclosed prior to surgery. This highlights the importance of informed consent and good communication, especially when a complication arises. A patient who feels engaged may be less likely to file a claim against the physician.
  • Inadequate patient assessment and failure to order pre- and post-surgical testing can lead to allegations of missed or failed diagnoses, e.g., a patient developed complications after the surgeon failed to order vascular studies for indications of poor post-op circulation in a patient whose diabetes was missed due to poor pre-op assessment.
  • Documentation of a patient’s failure to follow instructions provides a more comprehensive clinical picture and can help defend the care. Example: A patient pos-op spine surgery removed his back brace and stopped physical therapy on his own. The physician’s documentation countered the patient’s claim that the surgery was performed incorrectly.

Suggestions to mitigate risk and improve patient safety:

  • Discuss bad outcomes honestly with patients. Claims are often more related to communication that to the quality of the care.
  • Document patient factors (see above). Re-engage the patient if they seem confused or non-compliant.
  • Assure a good informed consent process.
  • Address risks for complications like DVT and PE, and provide prophylaxis. Suggested reading includes:
    • Maynard & Stein’s Preventing Hospital-Acquired Venous Thromboembolism, A Guide for Effective Quality Improvement
    • Venous Thromboembolism Quality Improvement Implementation Toolkit, Society of Hospital Medicine.
  • Team training improves safety and reduces claims. Resources include:
    • Neily et al. Association Between Implementation of a Medical Team Training Program and Surgical Mortality. JAMA, October 2010.
    • Department of Veterans Affairs, VA National Center for Patient Safety. Clinical Team Training.
    • Pronovost and Freischlag, Improving Teamwork to Reduce Surgical Mortality. JAMA, October 2010. Describes the role of pre-op consultation in matching a patient with a procedure/setting and post-op management.
  • Reduce the risk of infection. Checklists and antibiotic management help address this. Resources include:
    • Association of Peri-Operative Registered Nurses (AORN), Checklists.
    • Association for Professionals in Infection Control and Epidemiology, Guide to the Elimination of Orthopedic Surgical Site Infections.
  • Follow clinical practice guidelines, e.g.:

A nice infographic of this study is available here.


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