Trends and Risk Factors in Orthopedic Lawsuits: Analysis of a National Legal Database

Abstract

Orthopedic surgeons frequently encounter medical malpractice claims. The purpose of this study was to assess trends and risk factors in lawsuits brought against orthopedic surgeons using a national legal database. A legal research service was used to search publicly available settlement and verdict reports between 1988 and 2013 by terms “orthopaedic or orthopedic” and “malpractice.” Temporal trends were evaluated, and logistic regression was used to identify independent risk factors for case outcomes. A total of 1562 publicly reported malpractice cases brought against orthopedic surgeons, proceeding to trial during a 26-year period, were analyzed. The plaintiffs won 462 (30%) cases, with a mean award of $1.4 million. The frequency of litigation and pay-outs for plaintiffs increased 215% and 280%, respectively, between the first and last 5-year periods. The mean payout for plaintiff-favorable verdicts was highest in pediatrics ($2.6 million), followed by spine ($1.7 million) and oncology ($1.6 million). Fracture fixation (363 cases), arthroplasty (290 cases), and spine (231 cases) were the most commonly litigated procedures, while plaintiffs were most successful for fasciotomy (48%), infection-treating procedures (43%), and carpal tunnel release (37%). When analyzing data by state and region, adjusted for population, northeastern states had a higher frequency of lawsuits. Malpractice liability has increased during the past 3 decades while orthopedic surgeons continue to win most of the cases making it to court. As patients search for medical care via publicly available information, it is important for orthopedic surgeons to understand what aspects of their own practice carry different risks of litigation. [ Orthopedics . 2019; 42(2):e260–e267.]

Medical Malpractice Claims and Mitigation Strategies Following Spine Surgery

“… 2 Of cases that go to court, 54-75% end favorably for the surgeon/defense ( Table 2 ). 5 - 8 , 10 , 14 , 18 Makhni et al 14 noted that 75% of malpractice suits filed between 2010 and 2014 ended in favor of the defendant. In a separate review of cases ending in settlement or a jury verdict, Daniels et al 9 reported that 54.2% of cases ruled in favor of the defense while 26.1% of cases resulted in plaintiffs’ verdicts and 19.6% ended in a settlement.…”

“…2 Of cases that go to court, 54-75% end favorably for the surgeon/defense (Table 2). 5-8,10,14, 18 Makhni et al 14 While most cases that progress to a jury verdict end favorably for the defense, specific case characteristics can influence results. Agarwal et al 10 noted significant increases in plaintiffs' verdicts in litigation that cited failure to treat (P ¼ .025), patient death (P ¼ .04), or cases involving emergent surgery (P ¼ .002).…”

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“…If this trend negatively affects their reimbursements, then they may be forced out of the market. On the other hand, increasing malpractice litigation 9 against orthopaedic surgeons over the past 3 decades has caused rising malpractice insurance costs, which may be burdensome to smaller-sized practices. A general perception that patients with Medicaid status will be more likely to pursue malpractice lawsuits exists.…”

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“…This conclusion is also shared in the 2014 report of the French observatory of medical risks which concludes that 60% of disputes relate to a surgical procedure. The reason orthopaedics comes to the top of the ranking is mainly because of the number of surgical procedures it carries out, which far exceeds other specialities [13].…”