Orthopedic Surgery Claims

Procedural Complication Allegations Dominate

Orthopedic surgery data shows discernible fluctuations in average indemnity payments over the years, impacted by various factors such as advances in surgical techniques, legal changes, and patient expectations. For instance, the introduction of new surgical technologies can lead to a transient increase in claims as surgeons adapt to the latest techniques.¹ Understanding indemnity trends such as these can offer orthopedic surgeons valuable risk assessment and strategic planning perspectives. Orthopedic surgery stands out for its relatively paradoxical pattern of claims. On the one hand, it exhibits an average frequency of closed and paid claims when compared to other specialties. On the other, based on analysis of MPL Association data, the severity of these claims often falls slightly below the average.²

In orthopedic surgery, procedural complications emerge as the dominant medical factor regarding claims frequency.² These factors often involve issues such as incomplete or inadequate procedures and failure to recognize problems during the surgical process. One study classified surgical specialties as high risk for professional liability claims. This is because the allegations center around actions and performance issues, or as the study authors referred to it, issues of commission vs. omission.³

Procedural complications account for a staggering 72% of allegations made in orthopedic surgery claims. This contrasts with the broader landscape of medical professional liability claims, where procedural allegations make up only 26%.² This disparity emphasizes the heightened risk associated with surgical procedures in orthopedic practice and underscores the need for rigorous standards and protocols to mitigate these risks.

Digging deeper into the chief medical issues commonly implicated in orthopedic claims, we also find that alleged inadequacies in surgical technique, and failure to recognize postoperative complications, are prevalent. Unique to orthopedic surgery among the specialties in this study is the role of diagnostic or assessment errors concerning surgical procedures. This highlights the intricate relationship between preoperative evaluation and surgical outcomes, pointing to a critical area for targeted risk management.

In terms of severity, orthopedic surgery claims tend to result in less severe outcomes when compared to the broader spectrum of medical specialty claims. The most common categories of severity include temporary minor and major injuries, often related to surgical complications or postoperative care. One study of orthopedic claims found the most frequent injury alleged by plaintiffs was “residual pain after treatment due to a mechanical etiology, followed by complaints of nerve damage.”¹ Interestingly, the incidence of death in orthopedic surgery claims is significantly low, constituting only 8% of claims as opposed to the general rate of 26% across all specialties.²

Orthopedic Malpractice Case Study

A 48-year-old patient presented to an orthopedic surgeon to evaluate and treat a sports-related injury to the right knee. The patient reported that he had injured his knee practicing martial arts more than a month earlier. He reported pain of 8/10 with decreased range of motion (ROM), reduced strength, and difficulty ambulating. The surgeon reviewed a previous MRI study which revealed a right anterior cruciate ligament (ACL) rupture and a right medial collateral ligament (MCL) tear, grade 2.

iStock-1457631433-1 After a month of unsuccessful conservative treatment, ACL reconstructive surgery was scheduled. During the procedure the Coring Reamer broke while drilling the tibial tunnel, and the positioning of the hardware caused a 50% tear and avulsion of the autograft tendon. The surgeon missed a small fragment of the reamer underneath the skin at the incision site. Because of the damaged tendon, the surgeon drilled a second tunnel and supplemented it with allograft tissue to complete the procedure.

A little over two months later, the surgeon performed a right knee arthroscopy. An extensive release of adhesions was performed, which improved the ROM significantly. The surgeon also removed the remaining metallic fragment.

Over the next three months, the patient followed up with the surgeon for limited ROM, mild to moderate effusion of the knee, and muscle atrophy. The surgeon performed multiple needle aspirations and directed the patient to continue with physical therapy (PT) and refrain from exercise/impact activities.

Following this, the patient began receiving treatment with several other orthopedic surgeons and underwent multiple surgical procedures, attempting to regain full ROM. About five years after the original surgery, the patient underwent plastic surgery to prepare the leg for reconstruction. Postop he developed MRSA requiring an extensive stay in the ICU. Soon after that he underwent an above-the-knee amputation.

The patient brought a lawsuit against the orthopedic surgeon alleging, among other things, improper performance of an ACL repair of the right knee. It stated failure to remove retained metal fragments and tearing of the ACL graft during surgery caused severe arthrofibrosis of the right leg and subsequent amputation above the knee. The patient further alleged that the orthopedic surgeon failed to obtain informed consent because he never discussed the risks of surgery or the chance of developing arthrofibrosis.

Discussion

Expert support was mixed. Criticisms centered on the orthopedic surgeon not removing the avulsed graft and proceeding with an allograft or another autograft from the patient’s hamstring. Further, when the second set of tunnels was placed in the “supplemental allograft,” the femoral tunnel was too anteriorly placed, and the second graft was tensioned with the patient’s leg in 15-20 degrees of flexion. The second graft then caused pain upon flexion.

To mitigate risks identified in the claims data, orthopedic surgeons can:

Prior to performing any surgical procedure, obtain informed consent from the patient.
- Discuss the risks, benefits, and alternatives, including potential complications, with the patient in a clear and understandable manner.
- Document clearly the informed consent process in the patient’s medical record, including the discussion of the potential risks, benefits, complications, and alternatives to the surgery.
- Use standardized consent forms that outline the procedure, potential complications, and risks, and have the patient sign and date the form.
Maintain open and transparent communication with the patient throughout the entire treatment process, addressing any concerns or questions.

Ensure that surgical protocols are followed, including surgical checklists and verification procedures, to minimize the risk of retained foreign objects and surgical errors.
Promote effective teamwork in the operating room and communicate clearly with surgical staff to help prevent errors and complications during surgery. Document the surgical procedure thoroughly, including any unexpected events or complications, and follow standardized reporting protocols.
Implement quality assurance programs and regular case reviews to identify potential areas for improvement and help reduce the risk of complications.
If a complication does occur, conduct a thorough root cause analysis to understand the factors that contributed to the incident and implement corrective measures.

References

1. Charles B. Wilson, “Adoption of New Surgical Technology,” BMJ 332: 112–14 (January 12, 2006), https://doi.org/10.1136/bmj.332.7533.112.

2. Data Sharing Project Dashboard (2011-2021). MPL closed claims. MPL Association. Retrieved by ProAssurance (October 6, 2023).

3. James Reich and Alan Schatzberg, “Empirical Comparisons of Malpractice Claims of Different Medical Specialties,” Journal of Public Health Aspects 2, no. 1 (2015): 2.