Reasons for Litigation in Arthroplasty Infections and Lessons Learned

Medical-legal aspects in infectious diseases

This article reviews the medico-legal aspects associated with infectious diseases, highlighting their complexity and the challenges they pose. Infectious diseases cause not only an increase in morbidity and mortality in the healthcare setting but also involve complex legal issues. Healthcare-Associated Infections (HAIs) represent a growing risk with the increase in invasive procedures and can lead to patient complications and legal claims against healthcare professionals and institutions. The consequences of medical malpractice in this context are discussed, such as diagnostic delays, inappropriate use of treatments, and lack of adequate testing, which can have serious sequelae or even result in the patient's death. The review focuses on highlighting the importance of prevention, considering that healthcare-associated infections can be difficult to avoid, posing complex legal challenges. It concludes that managing infectious diseases and their legal consequences requires careful consideration of clinical practice guidelines, prevention and control strategies, and effective communication with patients. An integrated and evidence-based approach is advocated to address these challenges, emphasizing continuous education, the use of advanced diagnostic technologies, and interdisciplinary collaboration.

A 23-year analysis of litigation in orthopedic elbow surgery

BACKGROUND

The reasons for malpractice litigation in elbow surgery are not well understood. The aim of this study is to report the most frequently litigated surgeries of the elbow and analyze the reasons for litigation and case outcomes.

METHODS

A retrospective review of the Westlaw legal database was performed, and all federal and state jurisdiction litigation cases involving the elbow from 2000 to 2023 were queried. Cases were excluded if they did not involve an orthopedic surgeon, nor primary elbow injury or procedure. Cases were reviewed for demographic information, surgical procedure based on reference Current Procedural Terminology codes, complications, symptoms, and reasons for litigation. Quantitative information, including settlement and indemnity cost to the defendant orthopedic surgeon, was analyzed. Cases were subdivided based on United States Census Bureau regions and states to assess regional frequency of litigation with analyses of variance.

RESULTS

There were 59 cases meeting inclusion criteria from 2000 to 2023. The most litigated cases involved were ulnar nerve transposition/release and open reduction and internal fixation of the proximal radius and/or ulna at the elbow. The most litigated complication was claimed nerve damage (46%) and permanent disability (27%). Of the total cases, the most frequently litigated symptoms were nerve damage (46%) and loss of function (37%), whereas the least frequent was postoperative stiffness (2%). The Pacific region demonstrated the highest litigation rate (20%), whereas the East South Central, Mountain, and New England regions had the lowest litigation rate (3% each). A favorable verdict was given to the defendant orthopedic surgeon in 59% of the cases. The average loss incurred through settlement was $245,590, whereas the average indemnity paid through verdict was $523,334.

CONCLUSION

Operative fixation of the proximal ulna/radius and ulnar nerve release/transposition are the most litigated procedures of the elbow. Litigation is most associated with nerve injury. Across Census Bureau regions, there is no significant difference in monetary cost incurred through settlements and verdict losses. Although a majority of litigated cases are won by the defending orthopedic surgeon, thorough informed consent and perioperative expectation management may mitigate litigation risk.

Medico-legal risk of infectious disease physicians in Canada: A retrospective review

Objective

There is little known about the medico-legal risk for infectious disease specialists in Canada. The objective of this study was to identify the causes of these medico-legal risks with the goal of improving patient safety and outcomes.

Methods

A 10-year retrospective analysis of Canadian Medical Protective Association (CMPA) closed medico-legal cases from 2012 to 2021 was performed. Peer expert criticism was used to identify factors that contributed to the medico-legal cases at the provider, team, or system level, and were contrasted with the patient complaint.

Results

During the study period there were 571 infectious disease physician members of the CMPA. There were 96 patient medico-legal cases: 45 College complaints, 40 civil legal matters, and 11 hospital complaints. Ten cases were associated with severe patient harm or death. Patients were most likely to complain about perceived deficient assessments (54%), diagnostic errors (53%), inadequate monitoring or follow-up (20%), and unprofessional manner (20%). In contrast, peer experts were most critical of the areas of diagnostic assessment (20%), deficient assessment (10%), failure to perform test/intervention (8%), and failure to refer (6%).

Conclusion

While infectious disease physicians tend to have lower medico-legal risks compared to other health care providers, these risks still do exist. This descriptive study provides insights into the types of cases, presenting conditions, and patient allegations associated with their practice.

Malpractice litigation after spinal surgery: A review of allegations in France in 1990-2020

OBJECTIVE

Spinal surgery is among the specialities with the highest rates of complications and of peri-operative morbidity and mortality. The number of spinal surgeries performed is rising year on year in France. The objectives of this study were to identify the main reasons for malpractice claims after spinal surgery in France, to evaluate the impact of avoidable errors, and to examine differences between civil lawsuits (private institutions) and administrative lawsuits (public institutions).

HYPOTHESIS

The leading reasons for malpractice litigation are avoidable errors such as inadequate patient information, errors in indications, and inadequate post-operative monitoring.

MATERIAL AND METHODS

We reviewed malpractice claims related to spinal surgery and recorded in two French databases (Legifrance and Doctrine) in 1990-2020. We combined the indexing term "surgery" with any of the following terms: "disc", "spine", "cervical", "vertebral", "lumbar", "scoliosis", "disc replacement", and "fusion". The search was performed by three orthopaedic surgeons who were blind to patient data and recorded the allegations, verdicts, and pay-outs.

RESULTS

We included 275 claims. The main plaintiff allegations were inadequate information (34.5%), infection (22%), spinal-cord injury (17%), and errors in indication (13%). Among these reasons, 56.7% may have been partly avoidable. In private institutions, claims for infection and for erroneous indication were significantly more common than in public institutions (p=0.02 for both), whereas the opposite was true for spinal-cord injury (p<0.001).

CONCLUSION

After spinal surgery in France, the most common malpractice allegation was inadequate information. Over half the claims were related to potentially avoidable factors. Among allegations, errors in indication were significantly more common in civil than in administrative lawsuits.

LEVEL OF PROOF

IV, retrospective observational database study.

Litigation after primary total hip and knee arthroplasties in France: review of legal actions over the past 30 years

INTRODUCTION

Since the law of March 4, 2002, several modifications have impacted medical practices and their medico-legal implications. In case of an infectious complication not related to a fault of the practitioners (surgeons, anesthetists), the patient has the right to compensation assumed by the care structures. Moreover, the lack of preoperative information is no longer just a failing of the ethical standards but a breach of medical and legal obligations. Then, aims of this study were: (1) to describe the reasons for a lawsuit in France following total primary hip (THA) and total knee (TKA) arthroplasties and (2) to compare litigation characteristics of private and public practices.

MATERIALS AND METHODS

Civil (private practice) and administrative (public practice) court decisions in France between 1990 and 2020 were collected using the two main legal data sources (Legifrance, Doctrine).

RESULTS

Eighty-three TKA and 173 THA cases were identified. Reasons for complaint in primary THA were mainly infection (29%), prosthetic failures (18%), nerves injuries (17%), and leg length discrepancies (11%). The main grounds for complaint in favor of the plaintiff were diagnostic or indication mistakes (100%), infections (80%), especially if a lack of information was recognized (88%). Reasons for complaint following primary TKA were mainly infections (65%) and persistent pain or stiffness (12%). Whatever the reason, the verdict was in favor of the plaintiff in about 2/3 of the cases. THAs were more at risk of appeal in administrative procedures than in civil (p = 0.008). There were more cases of implant failure in civil proceedings (p = 0.008). Indemnities after primary THA was higher in public activity litigation (p = 0.04). There were no differences in verdicts, grounds for complaints, and compensation between public and private practices for primary TKA.

CONCLUSION

The main complaint about all the arthroplasties in France was a septic complication. The lack of information could be an added pejorative element for the final verdict.

Surgical solutions for preoperative skin preparation in total hip arthroplasty: A cost-effectiveness analysis of Betadine® and Chloraprep™

OBJECTIVE

The purpose of our study was to compare the cost of surgical site skin preparation using ChloraPrep™ (2% chlorhexidine gluconate [CHG] and 70% isopropyl alcohol [IPA]) with skin cleansing using Betadine® Surgical Scrub and Betadine® 5% solution (povidone-iodine [PVI]) in total hip arthroplasty (THA).

HYPOTHESIS

The hypothesis was that the ChloraPrep™ skin disinfection protocol reduces the cost of perioperative antisepsis.

METHODS

A prospective database was created for all THAs performed at our university hospital between November 1st, 2020, and December 31st, 2020. Each surgeon was randomly assigned one type of antiseptic prior to the start of the study: one surgeon to the ChloraPrep™ group and one to the Betadine® group. In both groups, the enrollment stopped at the 15th patient. The costs related to consumables, waste disposal, and operating room occupancy time of each protocol were then assessed for each patient.

RESULTS

The mean duration of the ChloraPrep™ protocol was 3.5±0.3minutes compared to 13.5±0.9minutes for the Betadine® protocol. The overall cost of a surgical site skin preparation involving all three steps was on average €46.8±4.2 for the ChloraPrep™ group compared to €155±10.9 for the Betadine® group (p<0.0001).

DISCUSSION

Not only is the effectiveness of ChloraPrep™ already recognized but it also appears to have health economic benefits. However, further studies are needed to confirm this finding.

LEVEL OF EVIDENCE

III, case control study.

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.

Litigation after hallux valgus surgery in France between 2000 and 2020: A review of the two national legal research databases

BACKGROUND

The objectives of this review were to: 1) describe reasons for lawsuits following primary hallux valgus surgery in France from 2000 to 2020; 2) to compare private and public practice.

METHODS

Civil (private practice) and administrative (public practice) court decisions in France between 2000 and 2020 were collected using the two leading legal data sources (Legifrance, Doctrine).

RESULTS

Seventy-two court decisions related to hallux valgus surgery were included. An appeal was filed in 93% of cases. Finally, 70.8% of the verdicts were in favor of the complainants. The average compensation awarded to a plaintiff was €55,333. The main reasons for complaint after hallux valgus surgery were: a failure to provide preoperative information (47.2%), post-operative pain/stiffness (38.9%), and infection (30.6%). A proven lack of information increased the risk of recognizing the occurrence of post-operative pain and stiffness as faulty from 13.3% to 61.5% (p = 0.01), and the average compensation from €25,330 to €76,716 (p = 0.04). The duration of the procedure was about 1.5 years longer in civil proceedings (p = 0.04). There was no significant difference between private and public activity litigation.

CONCLUSION

Clear and adapted patient information and its traceability could be a way to reduce the number of complaints and their consequences in case of disappointing results.

Postoperative pain and infection are the most frequent reasons for legal action after knee arthroscopy: a 5-year review based on two private insurance French companies after arthroscopy

PURPOSE

The objective of this study was to determine the reasons for complaints and describe the judicial means upstream of France's courts following arthroscopy.

METHODS

This is a retrospective observational study including all compensation records related to arthroscopic surgery, collected from the two leading French insurance organizations: MACSF and Branchet companies, from 2014 to 2018. Three medical experts performed the protocol and analysis.

RESULTS

Finally, 247 procedures were included. The most common motives were: the appearance or persistence of pain (43.7%), postoperative infection (29.1%), technical errors (10.5%), nerve damage (5.7%), arterial lesions (2.8%), side errors (2.4%). Knee arthroscopies were more at risk of legal action for infection (p = 0.0006), and for disappointing results or persistent pain (p = 0.001). The first recourse was the conciliation and compensation commission (CCI) in 136 cases (55.1%), the civil court (TGI) in 88 cases (35.6%) and amicable settlement in 23 cases (9.3%). The mean time between surgery and the complaint was 32.8 ± 25.7 months, and was shorter in the case of an amicable procedure (p < 0.001). The lawsuit's mean duration was 15.6 ± 11.2 months, but longer in case of civil proceedings (p < 0.0001). The experts found no negligence in 81.8% of cases (n = 202). Infections were the leading cause of recourse to the conciliation and compensation commission (p < 0.0001), while technical errors were the main reason for complaints settled in an amicable procedure (p = 0.035). It was found more proven negligence in case of amicable procedures (p < 0.0001). The mean amount of compensation was 60,968.45€. No significant difference could be found regarding the median values of compensation between the reason of complaint. The amount of compensation was higher in civil court proceedings than in any others (p = 0.02).

CONCLUSION

The main reasons for arthroscopy litigation in France are reported in this study, specifying how they are managed upstream of possible legal proceedings. The knee is the main joint involved. Patient information, close follow-up associated with early and appropriate management of complications are the main ways to reduce complaints.

LEVEL OF EVIDENCE

IV.

Inflation-Adjusted Medicare Reimbursement for Revision Hip Arthroplasty: Study Showing Significant Decrease from 2002 to 2019

BACKGROUND

Investigations into reimbursement trends for primary and revision arthroplasty procedures have demonstrated a steady decline over the past several years. Revision total hip arthroplasty (rTHA) due to infection (rTHA-I) has been associated with higher resource utilization and complexity, but long-term inflation-adjusted data have yet to be compared between rTHA-I and rTHA due to aseptic complications (rTHA-A). The present study was performed to analyze temporal reimbursement trends regarding rTHA-I procedures compared with those for rTHA-A procedures.

METHODS

The Centers for Medicare & Medicaid Services (CMS) Physician Fee Schedule Look-Up Tool was used to extract Medicare reimbursements associated with 1-stage and 2-stage rTHA-I as well as 1-stage rTHA-A procedures from 2002 to 2019. Current Procedural Terminology (CPT) codes for rTHA were grouped according to the American Academy of Orthopaedic Surgeons coding reference guide. Monetary values were adjusted for inflation using the consumer price index (U.S. Bureau of Labor Statistics; reported as 2019 U.S. dollars) and used to calculate the cumulative and average annual percent changes in reimbursement.

RESULTS

Following inflation adjustment, the physician fee reimbursement for rTHA-A decreased by a mean [and standard deviation] of 27.26% ± 3.57% (from $2,209.11 in 2002 to $1,603.20 in 2019) for femoral component revision, 27.41% ± 3.57% (from $2,130.55 to $1,542.91) for acetabular component revision, and 27.50% ± 2.56% (from $2,775.53 to $2,007.61) for both-component revision. Similarly, for a 2-stage rTHA-I, the mean reimbursement declined by 18.74% ± 3.87% (from $2,063.36 in 2002 to $1,673.36 in 2019) and 24.45% ± 3.69% (from $2,328.79 to $1,755.45) for the explantation and reimplantation stages, respectively. The total decline in physician fee reimbursement for rTHA-I ($1,020.64 ± $233.72) was significantly greater than that for rTHA-A ($580.72 ± $107.22; p < 0.00001).

CONCLUSIONS

Our study demonstrated a consistent devaluation of both rTHA-I and rTHA-A procedures from 2002 to 2019, with a larger deficit seen for rTHA-I. A continuation of this trend could create substantial disincentives for physicians to perform such procedures and limit access to care at the population level.

LEVEL OF EVIDENCE

Economic and Decision Analysis Level IV. See Instructions for Authors for a complete description of levels of evidence.

Compensation claims after hip arthroplasty surgery in Norway 2008-2018

Background and purpose - Orthopedic surgery is one of the specialties with most compensation claims, therefore we assessed the most common reasons for complaints following total hip arthroplasty (THA) reported to the Norwegian System of Patient Injury Compensation (NPE) and viewed these complaints in light of the data from the Norwegian Arthroplasty Register (NAR).Patients and methods - We collected data from NPE and NAR for the study period (2008-2018), including age, sex, and type of complaint, and reason for accepted claims from NPE, and the number of arthroplasty surgeries from NAR. The institutions were grouped by quartiles into quarters according to annual procedure volume, and the effect of hospital procedure volume on the risk for accepted claim was estimated.Results - 70,327 THAs were reported to NAR. NPE handled 1,350 claims, corresponding to 1.9% of all reported THAs. 595 (44%) claims were accepted, representing 0.8% of all THAs. Hospital-acquired infection was the most common reason for accepted claims (34%), followed by wrong implant position in 11% of patients. Low annual volume institutions (less than 93 THAs per year) had a statistically significant 1.6 times higher proportion of accepted claims compared with higher volume institutions.Interpretation - The 0.8% risk of accepted claims following THAs is 1.6 times higher for patients treated in low-volume institutions, which should consider increasing the volume of THAs or referring these patients to higher volume institutions.

Medicare Physician Fee Reimbursement for Revision Total Knee Arthroplasty Has Not Kept Up with Inflation from 2002 to 2019

BACKGROUND

As orthopaedic physician fees continue to come under scrutiny by the U.S. Centers for Medicare & Medicaid Services (CMS), there is a continued need to evaluate trends in reimbursement rates across contemporary time intervals. Although substantially lower work relative value units (RVUs) have been previously demonstrated for septic revision total knee arthroplasty (TKA) compared with aseptic revisions, to our knowledge, there has been no corresponding analysis comparing total physician fees. Therefore, the purpose of our study was to analyze temporal trends in Medicare physician fees for septic and aseptic revision TKAs.

METHODS

Current Procedural Terminology (CPT) codes related to septic 1-stage and 2-stage revision TKAs and aseptic revision TKAs were categorized. From 2002 to 2019, the facility rates of physician fees associated with each CPT code were obtained from the CMS Physician Fee Schedule Look-Up Tool. Monetary data from Medicare Administrative Contractors at 85 locations were used to calculate nationally representative means. All total physician fee values were adjusted for inflation and were translated to 2019 U.S. dollars using Consumer Price Index data from the U.S. Bureau of Labor Statistics. Cumulative annual percentage changes and compound annual growth rates (CAGRs) were computed utilizing adjusted physician fee data.

RESULTS

After adjusting for inflation, the total mean Medicare reimbursement (and standard deviation) for aseptic revision TKA decreased 24.83% ± 3.65% for 2-component revision and 24.21% ± 3.68% for 1-component revision. The mean septic revision TKA total Medicare reimbursement declined 23.29% ± 3.73% for explantation and 33.47% ± 3.24% for reimplantation. Both the dollar amount (p < 0.0001) and the percentage (p < 0.0001) of the total Medicare reimbursement decline for septic revision TKA were significantly greater than the decline for aseptic revision TKA.

CONCLUSIONS

Septic revision TKAs have been devalued at a rate greater than their aseptic counterparts over the past 2 decades. Coupled with our findings, the increased resource utilization of septic revision TKAs may result in financial barriers for physicians and subsequently may reduce access to care for patients with periprosthetic joint infections.

CLINICAL RELEVANCE

The devaluation of revision TKAs may result in reduced patient access to infection management at facilities unable to bear the financial burden of these procedures.