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Procedural error, negligence cited as most common reasons for litigation in orthopedic malpractice cases
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Procedural error and negligence were cited as the most common reasons for litigation in malpractice claims in orthopedic surgery, according to recently published results in Orthopedics.
Nicole D. Rynecki , BA, and colleagues used a Westlaw-based legal database to identify 81 jury verdicts and settlements with regard to medical malpractice and orthopedic surgery between 2010 to 2016. Two multivariable binary regression models were used to determine the possibility of a plaintiff jury verdict and the other to determine the possibility of a defendant verdict. The cases litigated most often included spine surgery, knee surgery and hip surgery. Among the cited reasons for litigation, the most common were procedural error and negligence.
According to researchers, the jury was in favor of the defendant in 61.7% of cases. Investigators found the mean plaintiff verdict payoff was $3,015,872. The mean value settlement was $1,570,833. Investigators noted significant negative predictors of a verdict in favor of the defendant included male patients and patient death.
“Recent studies have demonstrated that orthopedic surgery is amongst the most litigious of all medical specialties,” Rynecki, told Healio.com/Orthopedics. “Our analysis of medical malpractice claims involving orthopedic surgeons found that a majority of jury verdicts were in favor of the defendant surgeons. Procedural error and/or negligence were the two most commonly alleged malpractice claims, whilst patient death and unnecessary surgery were the only two significant predictors of a plaintiff verdict.”– by Monica Jaramillo
Disclosure: Rynecki reports no relevant financial disclosures.
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B. Sonny Bal, MD, JD, MBA, PhD
In their report derived from the Westlaw legal database, authors Rynecki and colleagues provide a useful demographic profile of orthopedic malpractice litigation. The information corroborates other studies showing how often juries decide in favor of defendant physicians vs. plaintiffs, and the expected pay-out amounts in verdicts and settlements. Not surprisingly, spine surgery is the most commonly litigated specialty.
Authors acknowledge the limitations of the underlying database, ie, reporting is not mandatory, and many lawsuits are settled confidentially out-of-court. Litigation is a complex process, and defendants may be named initially for strategic and procedural reasons, only to be dropped downstream, and new defendants may be added during the discovery process.
Recent trends show a lower incidence of medical malpractice litigation, albeit with higher monetary settlements and awards, a phenomenon believed to reflect, in part, the so-called medical malpractice reforms in many jurisdictions that limit damages. These reforms can have the adverse effect of excluding economically disadvantaged plaintiffs, and injured patients whose monetary losses fail to meet a certain threshold, thereby excluding them from any recovery whatsoever.
This article, like others, adds to our knowledge related to the complex intersection of law and medicine, a fluid zone continuously shaped by social values and trends, technology, and public perceptions. It is worthwhile to understand how these variables come together to make up the legal environment in which surgeons work daily and devise common-sense strategies to manage professional risk, through knowledge and affirmative engagement, rather than fear-based defensive strategies that are usually ineffective.
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