Litigation relating to conditions affecting the shoulder and elbow

The impact of system and diagnostic errors for medical litigation outcomes in orthopedic surgery

BACKGROUND

Medical litigation resulting from medical errors has a negative impact on health economics for both patients and medical practitioners. In medical litigation involving orthopedic surgeons, we aimed to identify factors contributing to plaintiff victory (orthopedic surgeon loss) through a comprehensive assessment.

METHODS

This retrospective study included 166 litigation claims against orthopedic surgeons using a litigation database in Japan. We evaluated the sex and age of the patient (plaintiff), initial diagnosis, diagnostic error, system error, the time and place of each claim that led to malpractice litigation, the institution's size, and clinical outcomes. The main outcome was the litigation outcome (acceptance or rejection) in the final judgment. Acceptance meant that the orthopedic surgeon lost the malpractice lawsuit. We conducted multivariable logistic regression analyses to examine the association of factors with an accepted claim.

RESULTS

The median age of the patients was 42 years, and 65.7% were male. The litigation outcome of 85 (51.2%) claims was acceptance. The adjusted median indemnity paid was $151,818. The multivariable analysis showed that diagnostic error, system error, sequelae, inadequate medical procedure, and follow-up observation were significantly associated with the orthopedic surgeon losing the lawsuit. In particular, claims involving diagnostic errors were more likely to be acceptance claims, in which the orthopedic surgeon lost (adjusted odds ratio 16.7, 95% confidence intervals: 4.7 to 58.0, p < 0.001). All of the claims in which the orthopedic surgeon lost were associated with a diagnostic or system error, with the most common one being system error.

CONCLUSIONS

System errors and diagnostic errors were significantly associated with acceptance claims (orthopedic surgeon losses). Since these are modifiable factors, it is necessary to take measures not only for individual physicians but also for the overall medical management system to enhance patient safety and reduce the litigation risk of orthopedic surgeons.

Malpractice against shoulder surgeons: what the data say

BACKGROUND

Thousands of orthopedic surgeons in the United State face medical malpractice claims annually; however, little is known regarding the common causes for litigation against shoulder surgeons. In addition, the current analysis does not take into consideration how surgical frequency affects the litigation likelihood. The purpose of our investigation was to identify the most common causes of litigation against shoulder surgeons in the United States adjusting for surgical frequency.

METHODS

The VerdictSearch database was used using the search terms "medical malpractice," "shoulder," and "NOT cancer." Results were queried, and all studies pertaining to orthopedic shoulder surgery included. Data gathered included cause of lawsuit, indemnity paid, type of surgery performed, results of the cases, verdict or settlement, and, if applicable, technical error. A query of a multisurgeon institutional database was conducted to determine how frequently surgeries were performed. Then the frequency of litigation was adjusted by the procedure frequency to determine which surgery has the greatest likelihood to be litigated relative to rotator cuff surgery.

RESULTS

Forty-five cases were included in our study. After adjusting for the procedure frequency, the most likely procedure to be litigated, relative to rotator cuff repair, was manipulation under anesthesia (MUA), 251 times more likely to be litigated, and washout/lavage procedures, 17 times more likely to be litigated. Injection and total shoulder arthroplasty were 23 and 14 times less likely to be litigated relative to rotator cuff repair, respectively. In addition, the average age of the patients was 47 years, and 53% of the cases involved a male plaintiff. The most commonly litigated procedures were rotator cuff repair (42%), MUA (13%), and humeral open reduction and internal fixation (9%). The most commonly cited symptoms for litigation against shoulder surgeons were pain (60%) and loss of range of motion (40%). Of the 45 cases, 44% ended in physician loss, with the average indemnity paid via verdict being $1,118,714 vs. $416,875 for settlement.

CONCLUSIONS

This study identifies that MUA and lavage/washout procedures are much more likely to be litigated relative to rotator cuff repair. Rotator cuff repair is actually one of the least likely procedures to be litigated. Furthermore, settlement may represent a method of decreasing the indemnity paid for malpractice cases for which surgeons are implicated.

Hospital dentistry litigation in England: clinical negligence claims against the NHS 2015-2020

Introduction Litigation against the NHS in England is rising. The aim of this study was to determine the incidence and characteristics of hospital dentistry clinical negligence claims in England.Methods A retrospective review was undertaken of all clinical negligence claims in England held by NHS Resolution relating to hospital dentistry between April 2015 and April 2020. Analysis was performed using the information for cause, patient injury and claim cost.Results A total of 492 claims were identified, with an estimated potential cost of £14 million. The most frequent causes for clinical negligence claims included failure/delay in treatment (n = 175; £3.9 million), inappropriate treatment (n = 56; £1.8 million) and failure to warn/obtain informed consent (n = 37; £1.5 million). Wrong site surgery was cited in 33 claims. The most frequent injury reported was dental damage (n = 197; £4.3 million), unnecessary pain (n = 125; £2.3 million) and nerve damage (n = 52; £2.4 million).Conclusion Clinical negligence claims in hospital dentistry are related to several different aspects of patient management and are not limited to treatment complications alone. Human ergonomics and patient perception of dentistry cannot be controlled but a focus on patient safety measures and effective communication can serve as tools to combat these factors.

Malpractice lawsuits in orthopedic trauma surgery: a meta-analysis of the literature

Introduction

The objectives for this study were to identify whether diagnostic or procedural errors more commonly resulted in lawsuit, as well as to elucidate how specific variables affected mean indemnity.

Methods

Systematic review of English-language articles in the PubMed and Google Scholar databases (through 2020) using Preferred Reporting Items for Systematic Reviews and Meta-Analyses guidelines. Meta-analysis was performed to estimate measures of proportions and differences in mean indemnity.

Results

The estimated probability of lawsuits related to orthopedic trauma in overall studies was 23.3%. There were no significant rate differences between main causes of claims (diagnostic vs procedural errors) and areas of injury (upper vs lower). There was no significant difference of mean indemnity between the probabilities of trauma-related claims, diagnostic error, and procedural error.

Conclusion

Non-trauma cases were more likely to result in lawsuit than trauma cases. Procedural errors accounted for most malpractice claims. The average indemnity increased according to the higher diagnostic errors, while the indemnity was lower with a relatively higher proportion of procedural errors. The most common cause of litigation varied between studies; however, among the most cited reasons were missed diagnosis/error in diagnosis, improper/substandard surgical performance, and, though not specifically studied in this analysis, errors of informed consent.

Level of Evidence

Economic and Decision Analyses Level VI.

Sensitivity and Specificity of Radiographs in the Diagnosis of Little and/or Ring Carpometacarpal Joint Injuries

Introduction  Little and ring finger carpometacarpal joints (CMCJs) injuries are commonly missed due to misinterpretation of radiographs. We aimed to determine the sensitivity and specificity of four different radiographic views. Materials and Methods  Radiographs (posteroanterior [PA], lateral [LAT], pronated oblique [POL], and supinated oblique [SOL] views) showing normal findings or little/ring finger CMCJ injuries were shown to two cohorts of orthopaedic trainees and a cohort of emergency nurse practitioners. Results  The POL view performed best in all three testing scenarios. The SOL view performed least well. The combination of a PA, true LAT, and POL identified 78% of injuries correctly. In no cases did the SOL view correctly identify an injury when the other three views had been interpreted as normal. Conclusion  We recommend a combination of the PA, POL, and LAT views in diagnosing these injuries. Where doubt remains, cross-sectional imaging is essential.

Patient injury claims involving fractures of the distal radius

Background and purpose - Optimal treatment for distal radius fractures remains controversial, with a significant number of fractures resulting in complications and long-term morbidity. We investigated patient injury claims related to distal radius fractures to detect the critical steps in the treatment leading to avoidable adverse events Patients and methods - We analyzed all compensated patient injury claims in Finland between 2007 and 2011. Claims were collected from the Patient Insurance Center's (PIC) nationwide claim register. Patients of all ages were included. Each claim decision, original patient records, and radiographs related to treatment were reviewed. Results - During the study period, the PIC received 584 claims regarding distal radius fractures, of which 208 (36%) were compensated. Pain and impaired wrist function were the most common subjective reasons to file claims among compensated patients. In 66/208 patients, more than 1 adverse event leading to patient injury was detected. The detected adverse events could be divided into 3 main groups: diagnostic errors (36%, n = 103), decision/planning errors (30%, n = 87), and insufficient technical execution (32%, n = 91). Issues related to malalignment were the main concerns in each group. Diagnostic errors were often related to incorrect assessment of the fracture (re)displacement (75%, n = 78). All of the decision-making errors concerned physicians' decisions to accept unsatisfactory fracture alignment. The most common technical error was insufficient reduction (29%, n = 26). Interpretation - We identified avoidable adverse events behind patient injuries related to distal radius fracture treatment. This study will help physicians to recognize the critical steps in the treatment of this common fracture and enhance patient safety.

Litigation in orthopedic surgery: What can we do to prevent it? Systematic analysis of 126 legal actions involving four university hospitals in France

INTRODUCTION

Orthopedic surgery produces 20% of medical malpractice claims. However only a few studies have examined the reasons for and consequences of these disputes, and they have usually been limited to a single hospital. This led us to perform a retrospective analysis of the claims at four teaching hospitals in northwestern France. The goals were (1) to describe the circumstances that led to these claims and recommend ways to prevent them, and (2) to describe the conduct of the proceedings and their financial and social outcomes.

HYPOTHESIS

A systematic analysis of litigation cases will provide accurate information on the circumstances leading to these claims.

METHODS

The study included 126 disputes settled between 2000 and 2010 and related to orthopedic or trauma care given at one of four teaching hospitals in northwestern France. The method of recourse, grounds of the complaint, type of surgical procedure, expert findings and amount of the award were systematically analyzed.

RESULTS

Of these 126 cases, 54 (43%) of them were submitted to the French CRCI (regional conciliation and compensation commission), 48 (39%) to the French administrative courts and 51 (41%) were settled amicably. Multiple methods of recourse were used in 21% of cases (n=27/126). The average length of administrative court proceedings was 36.7±27 months [4-102], which was significantly longer than the CRCI proceedings (22.7±17.9 months [3-80]) or out-of-court settlement (23.7±21.5 months [0-52]) (p<0.0001). Damages were sought for medical error or treatment-related risk in 67.5% of the complaints (n=85/126), and for failure to inform in 15.8% of cases (n=20/126). There was a suspected surgical site infection in 79.3% of cases (n=100/126). There were multiple grounds for complaint in 68.3% of cases (n=86/126). Poor communication between the physician and patient was identified in 26.2% of cases (n=33/126). Damages were awarded in 25% of cases (n=31/126), with an average award of €58,303±€91,601 [0-357,970].

CONCLUSION

The primary grounds for legal action are infection-related complications combined with a deterioration in the doctor-patient relationship. Disputes could be prevented by continuing efforts to combat hospital-acquired infections and providing better communications training.

LEVEL OF PROOF

IV (retrospective study).

NHSLA litigation in hip fractures: Lessons learnt from NHSLA data

Hip fractures are a major cause of trauma related death, usually occurring in vulnerable elderly patients. There are an estimated 70,000 hip fractures in the UK per year with numbers set to rise. The estimated annual cost to the healthcare economy is in the region of £2 billion. A 17-year review examining litigation related to hip fractures was undertaken. Under a freedom of information request, data was obtained relating to all orthopaedic claims made to the NHS Litigation Authority (NHSLA) between 1995 and 2012. Data was filtered to identify cases involving hip fractures examining litigation trends related to this specific area. 10263 NHSLA orthopaedic cases were identified, of which 13.3% (n=1364) cases related to the hip and femur. Hip fractures made up 16.7% (n=229). The total cost of hip fracture litigation was over £7 million with an average cost per case of £32,700. The commonest reasons for litigation were diagnostic errors (30.6%), issues with care (24.9%) alleged incompetent surgery (15.7%) and development of pressure sores (5.7%). This study highlights the main causes of litigation in patients sustaining hip fractures, with diagnosis in the emergency department and ward presenting a significant problem. In addition, the data identifies a range of care related issues, as well as several surgical factors and highlights the importance of pressure area care. We discuss these and make suggestions on how to improve practice in this area with the aim of improving patient care and reducing litigation.

Litigation related to casting in Orthopaedics-An analysis of claims against the National Health Service in England

Orthopaedic casts have been used to treat musculoskeletal conditions for hundreds of years and are still a fundamental component of treating a variety of disorders. As surgical techniques have advanced the frequency of use of orthopaedic casts has declined. With Orthopaedics being is one of the most litigious specialties in medicine we sough to evaluate how this related to casting in Orthopaedics and how we could learn from past mistakes. We analysed litigation claims related to Orthopaedic casts from 1995 to 2010 in which the claims were closed. 43 cases were related to orthopaedic casts. The total costs of these claims were over £2.3 million with an average total cost of £48,500 per claim. The most common cause for claim was harm caused when a cast was applied too tight and secondly from removing the cast. This is the first study to evaluate litigation claims related to Orthopaedic casts and highlights potential complications that if avoided will certainly improve the care of the patients and avoid unnecessary litigation.

Negligence claims following non-union and malunion of long bone fractures: An analysis of 15 years of data

INTRODUCTION

Non-unions and malunions are recognised to be complications of the treatment of long bone fractures. No previous work has looked at the implications of these complications from a medicolegal perspective.

METHODS

A complete database of litigation claims in Trauma and Orthopaedic Surgery was obtained from the NHS Litigation Authority. Two separate modalities of the treatment of long bone fractures were examined i) non-union and ii) acquired deformity. The type of complaint, whether defended or not, and costs were analysed.

RESULTS

There were claims of which 97 related to non-union and 32 related to postoperative limb deformity. The total cost was £8.2 million over a 15-year period in England and Wales. Femoral and tibial non-unions were more expensive particularly if they resulted in amputation. Rotational deformity cost nearly twice as much as angulation deformities.

CONCLUSIONS

The cosmetic appearances of rotational malalignment and amputation results in higher compensation; this reinforces an outward perception of outcome as being more important than harmful effects. Notwithstanding the limitations of this database, there are clinical lessons to be gained from these litigation claims.

Learning from lawsuits: Ten-years of NHS litigation authority claims against 11 surgical specialities in England

INTRODUCTION

Medico-legal claims are a drain on NHS resources and promote defencive practice. The litigious burden of surgery in England has not been previously described. This paper describes trends over ten years of claims made against the NHS across 11 surgical specialities.

MATERIALS AND METHODS

Data were requested for all claims received by the NHS Litigation Authority (NHSLA) from 2004 to 2014. Surgical specialities included cardiothoracic, general, neurosurgery, obstetric, oral and maxillofacial (OMFS), orthopaedic, otorhinolaryngology, paediatric, plastic, urology and vascular surgery. A literature review of peer-reviewed publications was performed with search terms 'NHSLA' and 'Surgery'.

RESULTS

The NHS paid out approximately £1.5 billion across 11 surgical specialities from 2004 to 2014. Orthopaedic, obstetric and general surgery received the largest number of claims per year, and paediatric surgery the least. The mean time from registration of claim with the NHSLA to settlement was 25.5 months (range 17.8 months-35 months). Neurosurgery was responsible for the highest average amount paid per claim, and OMFS the lowest. Failure/delay in treatment and/or diagnosis and failure to warn/adequately consent were the three leading types of claim. 806 never events were successfully claimed for during the ten-year period.

DISCUSSION AND CONCLUSION

Sharing information and good practice should be a priority for surgical professionals. Lessons learnt from medico-legal claims are transferrable in strategic planning. This pan-speciality report has demonstrated considerable burden on the NHS and should promote improvement in practice on an individual level in addition to providing systems based recommendations to NHS and international organisations.

[Clinical safety and professional liability claims in Orthopaedic Surgery and Traumatology]

The specialist in orthopaedic and traumatological surgery, like any other doctor, is subject to the current legal provisions while exercising their profession. Mandatory training in the medical-legal aspects of health care is essential. Claims against doctors are a reality, and orthopaedic and traumatological surgery holds first place in terms of frequency of claims according to the data from the General Council of Official Colleges of Doctors of Catalonia. Professionals must be aware of the fundamental aspects of medical professional liability, as well as specific aspects, such as defensive medicine and clinical safety. The understanding of these medical-legal aspects in the routine clinical practice can help to pave the way towards a satisfactory and safe professional career. The aim of this review is to contribute to this training, for the benefit of professionals and patients.

Clinical negligence in foot and ankle surgery

We present a review of litigation claims relating to foot and ankle surgery in the NHS in England during the 17-year period between 1995 and 2012.

A freedom of information request was made to obtain data from the NHS litigation authority (NHSLA) relating to orthopaedic claims, and the foot and ankle claims were reviewed.

During this period of time, a total of 10 273 orthopaedic claims were made, of which 1294 (12.6%) were related to the foot and ankle. 1036 were closed, which comprised of 1104 specific complaints. Analysis was performed using the complaints as the denominator. The cost of settling these claims was more than £36 million.

There were 372 complaints (33.7%) involving the ankle, of which 273 (73.4%) were related to trauma. Conditions affecting the first ray accounted for 236 (21.4%), of which 232 (98.3%) concerned elective practice. Overall, claims due to diagnostic errors accounted for 210 (19.0%) complaints, 208 (18.8%) from alleged incompetent surgery and 149 (13.5%) from alleged mismanagement.

Our findings show that the incorrect, delayed or missed diagnosis of conditions affecting the foot and ankle is a key area for improvement, especially in trauma practice.

Cite this article: Bone Joint J 2014;96-B:1510–14.