Just 25% of malpractice suits filed hit fellowship-trained surgeons, small, new study shows

96% of all shoulder claims involved orthopedists with no fellowship training in shoulder/upper extremity

WASHINGTON — A 22-year review of closed malpractice lawsuits over shoulder, arm, and elbow surgeries showed that patients filed just 25% of their grievances against surgeons with fellowship training.

The new study, which looked at 133 closed lawsuits handled at one large, physician-owned Northeastern malpractice insurance company, found that 59% of the cases led to indemnity for plaintiffs at an average payment of $185,553 per case. The researchers included all cases handled by the company between 1976 and 1998. All claims came from New York State.

A larger study of malpractice lawsuits by the American Academy of Orthopaedic Surgeons (AAOS) in 2000 found that 30% of all orthopedic claims filed resulted in payments averaging $133,000.

Higher-risk procedures

Adult humeral shaft, elective adult shoulder and pediatric elbow fractures were at the highest risk for lawsuits among the procedures studied, said William D. Schell, MD, of New York City, the study’s presenter. Seventy percent of adult claims involved the shoulder, Schell noted.

SOURCE: WILLIAM D. SCHELL

Ninety six percent of all shoulder claims involved an orthopedist who was not fellowship-trained in shoulder/upper extremity, Schell said. And just one out of the 15 pediatric elbow claims involved treatment by a pediatric fellowship-trained orthopedist, Schell said during his presentation at AAOS 72nd Annual Meeting. Once cases got filed and moved through the court system, however, the study found no difference in outcomes or payments based on fellowship training.

Plaintiffs and defendants settled 22% of claims by court verdict and 44% out of court, with the balance discontinued or dismissed, said Schell, who is also chief resident in orthopedics at St. Lukes’ Roosevelt Hospital Center in New York City. “To our knowledge, no study exists which specifically evaluates these upper limb injuries as they relate to medical liability,” he said.

Most common errors

SOURCE: WILLIAM D. SCHELL

When filing the lawsuits, three out of five of the patients alleged medical (surgical) error, while one in five charged improper nonoperative treatment. Most of the other cases involved diagnosis failure. The most common surgical errors sparking claims involved the following:

hardware failure (36%);
neuropathy (24%); and,
insufficient surgery (24%).

Thirty-seven percent of the cases ended with a “no malpractice” judgment. Distribution of the remaining cases went as follows:

surgical error, 32%
diagnosis failure, 21%;
improper nonoperative treatment, 11%;

“Interestingly, no claims existed for clavical nonunion or malunion or for adult elbow dislocations,” Schell said. The study further found that claims involving the humeral shaft were associated either with radial nerve injury or plate failure. All pediatric elbow claims involved fractures, with half (four out of eight) leading to payouts compared with all seven nonoperative claims that led to payouts. Payments on pediatric claims averaged far more than claims paid for adults — $259,000 vs. $172,000, respectively.

The authors also pointed out that of the top 10 claims with indemnity payments, seven involved a missed diagnosis and five of the eight shoulder dislocation claims involved a missed diagnosis of a posterior dislocation. On final analysis of the data, “Sixty-two percent of all trauma cases paid indemnity with an average of $186,190 while 56% of all elective cases paid indemnity with an average of $184,512.”

The authors cited the large variety of injuries and allegations and the limited geographical focus as the limitations of their review.

For more information:
Schell WD, Barron OA, Glickel S, et al. 22-year review of shoulder, arm, and elbow closed malpractice cases. Presented at the American Academy of Orthopaedic Surgeons 72nd Annual Meeting. Feb. 23-27, 2005. Washington.