Reducing Wrong-level Spinal Surgeries Through Root Cause Analyses: A 10-year Longitudinal Analysis of a Single Tertiary Institution's Iterative Policy Improvements

MINI

This study is a comprehensive narrative of all wrong-level spine surgeries and prevention strategies employed at our institution between 2008 and 2019, and aims to provide a roadmap for developing a rigorous prevention protocol. We systematically track root cause analyses and policy changes to determine which prevention strategies are most effective.

Malpractice Litigation for Compartment Syndrome

BACKGROUND

The aim of this study was to analyze litigation involving compartment syndrome to identify the causes and outcomes of such malpractice suits. A better understanding of such litigation may provide insight into areas where clinicians may make improvements in the delivery of care.

METHODS

Jury verdict reviews from the Westlaw database from January 1, 2010 to January 1, 2018 were reviewed. The search term "compartment syndrome" was used to identify cases and extract data on the specialty of the physician defendant, the demographics of the plaintiff, the allegation, and the verdict.

RESULTS

A total of 124 individual cases involving the diagnosis of compartment syndrome were identified. Medical centers or the hospital was included as a defendant in 51.6% of cases. The most frequent physician defendants were orthopedic surgeons (45.96%) and emergency medicine physicians (20.16%), followed by cardiothoracic/vascular surgeons (16.93%). Failure to diagnose was the most frequently cited claim (71.8% of cases). Most plaintiffs were men, with a mean age of 36.7 years, suffering injuries for an average of 5 years before their verdict. Traumatic compartment syndrome of the lower extremity causing nerve damage was the most common complication attributed to failure to diagnose, leading to litigation. Forty cases (32.25%) were found for the plaintiff or settled, with an average award of $1,553,993.66.

CONCLUSIONS

Our study offers a brief overview of the most common defendants, plaintiffs, and injuries involved in legal disputes involving compartment syndrome. Orthopedic surgeons were most commonly named; however, vascular surgeons may also be involved in these cases because of the large number of cases with associated arterial involvement. A significant percentage of cases were plaintiff verdicts or settled cases. Failure to diagnosis or delay in treatment was the most common causes of malpractice litigation. Compartment syndrome is a clinical diagnosis and requires a high level of suspicion for a timely diagnosis. Lack of objective criteria for diagnosis increases the chances of medical errors and makes it an area vulnerable to litigation.

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

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 in Orthopedic Surgery: A Westlaw-Based Demographic Analysis

A recent study that evaluated the risk of facing a malpractice claim by physician specialty found that orthopedic surgeons were at a significantly greater risk of being sued than other medical specialists. To date, no studies have characterized trends in orthopedic surgery malpractice claims. The Westlaw legal database was used to locate state and federal jury verdicts and settlements related to medical malpractice and orthopedic surgery from 2010 to 2016. Eighty-one cases were analyzed. The mean age of the affected patients and/or plaintiffs was 53.4 years. Spine surgery (21 cases; 25.9%), knee surgery (17 cases; 21.0%), and hip surgery (11 cases; 13.6%) were litigated most often. Procedural error (71 cases; 87.7%) and negligence (58 cases; 71.6%) were the 2 most commonly cited reasons for litigation. The jury found in favor of the defendant in most (50 cases; 61.7%) of the cases. The mean plaintiff (17 cases; 21.0%) verdict payout was $3,015,872, and the mean settlement (13 cases; 16.0%) value was $1,570,833. Unnecessary surgery (odds ratio [OR], 12.29; 95% confidence interval [CI], 1.91-108.46; P=.040) and surgery resulting in death (OR, 26.26; 95% CI, 2.55-497.42; P=.040) were significant predictors of a verdict in favor of the plaintiff. Patient death (OR, 0.05; 95% CI, 0.01-0.38; P=.021) and male patient sex (OR, 0.26; 95% CI, 0.09-0.71; P=.033) were significant negative predictors of a verdict in favor of the defendant. The jury found in favor of the defendant orthopedic surgeon in most cases. Procedural error and/or negligence were cited most commonly by the plaintiffs as the bases for the claims. Verdicts in favor of the plaintiffs resulted in payouts nearly double those of settlements. [Orthopedics. 2018; 41(5):e615-e620.].

The medicolegal landscape of spine surgery: how do surgeons fare?

BACKGROUND CONTEXT

Because of the limited and confidential nature of most legal data, scarce literature is available to physicians about reasons for litigation in spine surgery. To optimally compensate patients while protecting physicians, further understanding of the medicolegal landscape is needed for high-risk procedures such as spine surgery. Based on these, surgeons can explore ways to better protect both their patients and themselves.

PURPOSE

To characterize the current medicolegal environment of spine surgery by analyzing a recent dataset of malpractice litigation.

STUDY DESIGN

A retrospective study.

PATIENT SAMPLE

All malpractice cases involving spine surgery available to public query between the years of 2010 and 2014.

OUTCOME MEASURES

Case outcome for spine surgery malpractice cases between the years of 2010 and 2014.

METHODS

WestlawNext was used to analyze spine surgery malpractice cases at the state and federal level between the years 2010 and 2014. WestlawNext is a subscription-based, legal search engine that contains publicly available federal and state court records. All monetary values were inflation adjusted for 2016. One hundred three malpractice cases were categorized by case descriptors and outcome measures. Claims were categorized as either intraoperative complaints or preoperative complaints.

RESULTS

Rulings in favor of the defendant (surgeon) were noted in 75% (77 of 103) of the cases. Lack of informed consent was cited in 34% of cases. For the 26 cases won by the plaintiff, the average amount in settlement was $2,384,775 versus $3,945,456 in cases brought before a jury. Cases involving consent averaged a compensation of $2,029,884, whereas cases involving only intraoperative complaints averaged a compensation of $3,667,530. A significant correlation was seen between increased compensation for plaintiffs and cases involving orthopedic surgeons (p=.020) or nerve injury (p=.005). Wrong-level surgery may be associated with lower plaintiff compensation (p=.055). The length of cases resulting in defense verdicts averaged 5.51 years, which was significantly longer than the 4.34 years average length of settlements or verdicts in favor of plaintiffs (p=.016).

CONCLUSIONS

Spine surgeons successfully defended themselves in 75% of lawsuits, although the cases won by physicians lingered significantly longer than those settled. Better understanding of these cases may help surgeons to minimize litigation. More than one third of cases involved a claim of insufficient informed consent. Surgeons can protect themselves and optimize care of patients through clear and documented patient communication, education, and intraoperative vigilance to avoid preventable complications.

Informed consent and the readability of the written consent form

Introduction The aim of this study was to objectively ascertain the level of readability of standardised consent forms for orthopaedic procedures. Methods Standardised consent forms (both in summary and detailed formats) endorsed by the British Orthopaedic Association (BOA) were retrieved from orthoconsent.com and assessed for readability. This involved using an online tool to calculate the validated Flesch reading ease score (FRES). This was compared with the FRES for the National Health Service (NHS) Consent Form 1. Data were analysed and interpreted according to the FRES grading table. Results The FRES for Consent Form 1 was 55.6, relating to the literacy expected of an A level student. The mean FRES for the BOA summary consent forms (n=27) was 63.6 (95% confidence interval [CI]: 61.2-66.0) while for the detailed consent forms (n=32), it was 68.9 (95% CI: 67.7-70.0). All BOA detailed forms scored >60, correlating to the literacy expected of a 13-15-year-old. The detailed forms had a higher FRES than the summary forms (p<0.001). Conclusions This study demonstrates that the BOA endorsed standardised consent forms are much easier to read and understand than the NHS Consent Form 1, with the detailed BOA forms being the easiest to read. Despite this, owing to varying literacy levels, a significant proportion of patients may struggle to give informed consent based on the written information provided to them.

Doctor's delay in diagnosis of slipped capital femoral epiphysis

INTRODUCTION

Slipped capital femoral epiphysis (SCFE) is one of the most common hip disorders in the adolescent child. The primary treatment is acute epiphysiodesis. Diffuse symptomology seems to delay diagnosis and delayed treatment entails a risk of complications. Via the independent Danish Patient Insurance Association (DPIA), Danish patients have been able to file a claim when an unexpected side effect or injury has resulted from their medical treatment. The DPIA is based on a no-blame, no-fault case evaluation, which is free of charge and without any legal action. We wanted to examine the causes of complaints through closed claim analysis.

MATERIAL AND METHODS

In the DPIA, all medical statements and internal DPIA notes are stored and available for detailed scrutiny. Cases from 1996 to 2011 were investigated for treatment failures.

RESULTS

A total of 40 cases were included. The mean age of the children was 12.4 years. A doctor's delay (DD) of the diagnosis was found in 27 case files, with an average 181-day delay. The education and specialisation of the doctors responsible was diverse. Often orthopaedic surgeons would make the correct diagnosis. Complications to surgery were found in 16 cases. In all, 22 of the 40 cases were economially compensated, 16 cases were categorised as "severe disability" by the DPIA.

CONCLUSION

This study used closed claim analysis to determine that DD might result in a deteriorated treatment result in children with SCFE. Hopefully, awareness of the disease may lead to an earlier correct diagnosis and hence improve the outcome for the child.

FUNDING

not relevant.

TRIAL REGISTRATION

not relevant.

Medical and legal considerations in managing patients with musculoskeletal tumors

At some point in their careers, many orthopaedic surgeons will have to navigate the legal system as it pertains to medical malpractice. An orthopaedic surgeon will find it helpful to review information on the basic legal elements of medical malpractice law along with suggestions on how he or she can assist the legal defense team if a lawsuit is filed. Surgeons who face litigation within the context of managing patients with musculoskeletal tumors should be aware of the common pitfalls in managing these patients. Knowledge of complementary strategies can provide good patient care and reduce legal risks when caring for patients with musculoskeletal neoplasms.

Professional liability in orthopaedics and traumatology in Italy

BACKGROUND

Interest in medical errors has increased during the last few years owing to the number of medical malpractice claims. Reasons for the increasing number of claims may be related to patients' higher expectations, iatrogenic injury, and the growth of the legal services industry. Claims analysis provides helpful information in specialties in which a higher number of errors occur, highlighting areas where orthopaedic care might be improved.

QUESTIONS/PURPOSES

We determined: (1) the number of claims involving orthopaedics and traumatology in Rome; (2) the risk of litigation in elective and trauma surgery; (3) the most common surgical procedures involved in claims and indemnity payments; (4) the time between the adverse medical event and the judgment date; and (5) issues related to informed consent.

METHODS

We analyzed 1925 malpractice judgments decided in the Civil Court of Rome between 2004 and 2010.

RESULTS

In total, 243 orthopaedics claims were filed, and in 75% of these cases surgeons were found liable; 149 (61%) of these resulted from elective surgery. Surgical teams were sued in 30 claims and found liable in 22. The total indemnity payment ordered was more than €12,350,000 (USD 16,190,000). THA and spinal surgery were the most common surgical procedures involved. Inadequate informed consent was reported in 5.3% of cases.

CONCLUSIONS

Our study shows that careful medical examination, accurate documentation in medical records, and adequate informed consent might reduce the number of claims. We suggest monitoring of court judgments would be useful to develop prevention strategies to reduce claims.

[Thromboembolic complications in orthopedic surgery--medico-legal assessment in evaluation of correctness of medical treatment in selected cases]

Thromboembolic events continue to account for a high percentage of complications after orthopedic surgery. Of significance in prevention of these diseases is appropriate pharmacotherapeutic prophylaxis, both pre and postoperative, as well as orthopedic and trauma surgeons being aware of the risk of such complications and of possibilities of avoiding or minimizing thromboembolic events. The authors present some cases that were certified in Chair of Forensic Medicine, Silesian Medical University in Katowice, in which thromboembolic complications did develop after conservative or surgical orthopedic treatment, emphasizing possible difficulties in unequivocal assessment of the cause-effect relationship between the employed treatment and the thromboembolic event in the aspect of medico-legal certification.

[Indications for surgery from the viewpoints of surgeon and juror]

Whether an operation is indicated or not is a question that is a frequent subject of discussion between physicians and the legal front. As the state has the duty to protect its citizens, any physical surgical operation is legally seen as a personal injury. Only if the patient completely agrees to the surgery after being carefully informed about it is the element of criminal offense (personal injury) revoked. The obligation to disclose medical information on the surgery applies to information on the operation itself and on the possible consequences to the patient in his/her physical and mental social environment. In particular, the patient must be given all information about the risks that could arise during and after the surgery. The legislative aim of this is not to treat a list of questions and to mention all possible risks, but the legislator wants to oblige physicians to give patients who have reached the age of majority full information on diagnosis and therapy and to enable them to consider the pros and cons of the surgery carefully and then to agree to the operation or to refuse it. Besides the obligation to disclose medical information in emergency cases, the obligation to disclose medical information to minors also makes heavy demands on the physician. Examples of contraindications are given.

Patientenaufklärung — Fakt und Fiktion

One third of all lawsuits against doctors include statements of insufficient or lacking informed consent. The objectives of this prospective study in 104 patients were to elucidate the actual clinical routine of obtaining informed consent (process quality), collect information on active and passive recall 3 to 7 days p.op., and to investigate whether patient age, sex, education, profession, and cognitive function using the Mini Mental State Test, the time from obtaining consent to interview, acuity (emergency vs elective cases), and quantity of patient/doctor interaction would influence the patient's recall capabilities. In clinical routine, obtaining informed consent is a very variable procedure, and between two and 18 items were documented by the physician. Of the patients, 12.6% recalled actively and 43.5% passively. They named between 1.1 and 3.7 items on average, with "infection" as the leading complication, followed by "pain" and "lesion of nerves". Of all parameters investigated, only the number of initially documented items exhibit a significant effect on the patients' recall. The quantity of patient/physician interaction not only guarantees an increased effect on recall but also means improves patient interaction, thereby reducing the probability of imminent accusations.

The medical-legal aspects of informed consent in orthopaedic surgery

BACKGROUND

Orthopaedic surgeons routinely obtain informed consent prior to surgery. Legally adequate informed consent requires a thorough discussion of treatment options and risks and proper documentation; however, there is little data to guide orthopaedic surgeons regarding effective methods of obtaining informed consent.

METHODS

We performed a closed claims analysis on malpractice claims involving an allegation of inadequate informed consent brought during a twenty-four-year period with two malpractice insurers. Relevant malpractice claims were reviewed, and data were abstracted. We then performed statistical analyses to identify factors that positively correlated with a successful defense.

RESULTS

We identified twenty-eight lawsuits that included a claim of inadequate informed consent. All of the cases involved elective orthopaedic surgical procedures; there were no emergent cases. Three cases involved a disputed surgical site; all three cases involved foot and ankle surgery and resulted in an indemnity payment. Documentation of appropriate informed consent in the office notes of the surgeon was associated with a decreased indemnity risk (p < 0.005). Obtaining the informed consent on the hospital ward or in the preoperative holding area was associated with an increased indemnity risk (p < 0.004). When informed consent was obtained in the office by the operating surgeon, the risk of malpractice payment was significantly decreased (p < 0.004).

CONCLUSIONS

Surgeons may be able to decrease the risk of a malpractice claim by obtaining informed consent in their offices, rather than in the preoperative holding area, and by documenting the informed consent discussion within their dictated office or operative notes.

The forensic medical aspects of thromboembolic risk in orthopaedic surgery

The correct balance between risk factors for the patient and those related to the type of surgery performed is an essential requirement when proposing appropriate anti-thrombosis prophylaxis, which is not always without risks. The guidelines consist in the essential parameter with which the surgeon must be inspired. Nonetheless, their acceptance cannot be totally uninfluenced but must be submitted to a critical analysis, as it cannot constitute, in terms of so-called defensive medicine, a hypothetical refuge to avoid responsabilities nor can it be an acritical parameter in a legal situation. In recent years, cases in this field have increased so that it seems useful to suggest greater involvement by the coagulation specialist, at least in the most complex cases. Legal suits frequently involve a lack of prophylaxis, inadequate prophylaxis, lack of monitoring of coagulative parameters, insufficient duration of prophylaxis, lack of diagnostic testing to be used when DVT and PTE are suspected. Nonetheless, in order to avoid blame on the profession it is not enough to choose suitable and correct treatment; it is important to also keep iatrogenic injury from becoming the center of a legal action because of the lack of patient informed consent. The amount of data is directly proportional to the amount of risk. Furthermore, it is necessary to insist on the need to document data, as a preventive measure, so that the patient is also responsible for the risk taken. In court, the signing of forms cannot be valid proof that the patient was effectively and truly provided with all of the information required.

Medicolegal aspects of foot and ankle surgery

Medicolegal aspects of orthopaedic foot and ankle surgery, including issues of standard of care, complications, and discrepancies between patient and physician expectations, generally are similar to those encountered in other orthopaedic subspecialties. However, there are some unique aspects involving foot and ankle surgery: the standard of care continues to evolve, some complications are specific to the foot and ankle, and patient expectations of particular foot and ankle procedures may exceed those of the foot and ankle surgeon, who often is confronted with challenging pathologic conditions. This review addresses issues of standard of care and complications as they pertain to current practices of orthopaedic foot and ankle surgery.

Medicolegal aspects of the orthopaedic care for shoulder injuries

The medicolegal aspects of orthopaedic care increasingly are becoming an important focus of physicians. Because of the rarity of publications on the subject, I will examine medical litigation in orthopaedics, specifically in regards to shoulder injuries. There are several reasons for recent increases in malpractice litigation. Increased orthopaedic specialization and advanced technologies have raised patient expectations while the media have informed patients of the potential financial rewards of litigation. I will discuss three cases of litigation regarding shoulder injuries including reasons for malpractice and what can be done to avoid it. In Case 1 I examine an implant failure of a rotator cuff repair. The failure was caused by a manufacturing error; therefore, the importance of being familiar with the equipment and the companies that a physician deals with is emphasized in this case. Case 2 is another failed rotator cuff repair; this litigation stemmed from poor patient selection and a lack of preoperative patient-physician communication. Finally, Case 3 involved retained hardware, a surgical mistake that often results in a substantial settlement because it is considered indefensible. These cases highlight the potential for malpractice and can be applied more broadly to all branches of orthopaedics. Most litigation, however, can be avoided with careful diagnostic procedures, greater experience with equipment, and better communication.

Consent in orthopaedic surgery

AIM

To investigate whether the guidelines set out by the UK Department of Health on informed consent are being followed nationally in orthopaedic surgery.

METHODS

A postal questionnaire of UK orthopaedic consultants was undertaken asking about consenting procedures for an elective and a trauma situation.

RESULTS

In 53 of 110 cases, the most junior member of the team takes consent, and patients are not being warned about specific complications and risks associated with surgery.

CONCLUSIONS

The guidelines issued by the Department of Health are not being adhered to, and the consenting doctor needs to be aware of the medical and legal responsibilities in taking informed consent.

Perceptions of responsibility for clinical risk management: evidence from orthopaedics practitioners, practice managers and patients in an Australian capital city

The article describes a study of the perceptions of three groups--patients, orthopaedic surgeons and the surgeons' practice managers--concerning three types of legal risk associated with the duty of care: failure to follow up, failure to warn and failure to diagnose. The study found there is cause for concern about doctors' follow-up and documentation of patient care. Doctors may be unaware of the Australian courts' propensity to emphasise practitioner responsibility rather than patient autonomy. A further important result is the considerable disparity between the surgeons' views and the views of their practice managers about the duty of care. The article draws out implications for improved risk awareness and suggests further research.

It is easier to confuse a jury than convince a judge: the crisis in medical malpractice

STUDY DESIGN

A study of cervical spine malpractice cases was conducted. Identifying tort reform models may help to resolve a crisis in medical malpractice.

OBJECTIVE

To identify tort reform models that may help to resolve a crisis in medical malpractice.

SUMMARY OF BACKGROUND DATA

Medical malpractice faces a crisis. Insurance rates are exorbitant, yet many injured patients go uncompensated. Physicians practice defensive medicine for fear of suits, and society pays the price.

METHODS

Using, 36 malpractice cases involving cervical spine surgery were identified: 20 from California ($250,000 cap on pain and suffering) and 16 from New York ("the sky's the limit"). Queries included who sued, who was sued, who won, who lost, and why? Six different tort reform models also were identified and explored.

RESULTS

Common bases for suits included failure to diagnose and treatment (56%), lack of informed consent (64%), new neurologic deficits (64%), and pain and suffering (72%). All of the six plaintiff verdicts (average, $4.42 million) and four of the nine settlements (average, $1.6 million) involving surgery that resulted in new postoperative quadriplegia appeared to be appropriate. However, the author could discern "no fault" in cases five defendants had settled, and the surgeons did not deserve to lose. On the other hand, the author found "fault" in five defense verdicts rendered to three newly quadriplegic patients and two with new postoperative root injuries. These patients deserved monetary awards, but received no compensation whatsoever. There currently are two models that would work better than the system in place in most states. These include the American Medical Association National Specialty Societies Medical Liability Project with the Alternative Dispute Resolution Model (SSMLP), and the Selective No Fault Models. Among the advantages shared by one or more of these models is their ability to reimburse injured patients while eliminating physician liability, to use malpractice panels rather than trials, and to put a cap on damages.

CONCLUSIONS

To solve the medical malpractice crisis, Congress, the individual states, or both should adopt tort reform. Two tort reform models compensating injured patients and eliminating physician liability appear to be not only effective but also fair to all concerned parties.

Ghost surgery: the ethical and legal implications of who does the operation

Case 1: A patient who is rehospitalized for complications after shoulder arthroscopy discovers that his surgeon's partner performed the operation. The orthopaedists contend that they practice as a "team," deciding who does the specific case just prior to the operation(1). Case 2: Arthroscopic partial meniscectomy is performed by a resident. The attending orthopaedist scrubs briefly and then leaves to perform a simultaneous procedure in another room. The patient has a postoperative complication(2). Case 3: Carpal tunnel release is performed by a resident, under the supervision of an attending orthopaedist who has been present for the entire case and who has introduced the resident as his assistant in the informed-consent process. The median nerve is injured by the resident(3).