Discussion with medical malpractice carriers is timely
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The topic of medical malpractice often provokes anxiety for physicians, especially orthopedic surgeons.
Integrating technology, science, technical skill and innovation has improved the care of increasingly complex problems. This has led to public sentiment that almost any musculoskeletal problem can be improved with modern-day orthopedic surgical procedures. To some degree, our pursuit of achieving outcomes to allow patients with injury or disease to return to everyday life and similar athletic performance has created a public expectation that can be difficult to achieve.
Negligence
When the outcome is different than expected, personal and external influences may lead one to believe the orthopedic surgeon was negligent in providing care. Negligence on behalf of the orthopedic surgeon has a legal definition. It includes fulfilling the professional duty owed to the patient, evidence of a breach of professional duty, subsequent injury caused by the violation of the professional responsibility, and the resulting and persistent damage that may affect economic and non-economic factors.
Recently, a jury determined that one of our most esteemed sports medicine colleagues and a top orthopedic institution were negligent in the care of a National Football League player’s knee injury. According to public testimony, the professional athlete injured his knee during an NFL game. The subsequent diagnosis included a tear of his PCL and a meniscus injury. During the rehabilitation following the surgical treatment of his knee, the athlete developed symptoms that led to another imaging study. After reviewing the study, the athlete was prescribed additional rehabilitation and nonoperative care. The athlete stated the provided care resulted in permanent loss of the function of his knee, inability to play football, need for ongoing medical care, and pain and suffering related to the loss of his professional football career and activities with his family. The jury awarded the plaintiff $43.5 million, of which the surgeon was responsible for $29.2 million of the award.
Risk for lawsuits
The details of the case, as well as continued legal proceedings, will emerge with time. However, this lawsuit and subsequent verdict must alert orthopedic surgeons to the risks of caring for athletes at all levels, especially professional athletes, and now collegiate athletes, with the new name, image and likeness policies that may provide significant financial opportunities.
Lawsuits against orthopedic surgeons are not rare. According to data from the AMA’s 2020 and 2022 Physician Practice Benchmark Surveys, almost 67% of orthopedic surgeons aged 55 years and older and 30% younger than age 55 years have reported being sued during their careers to date.
Although many orthopedic surgeons will encounter medical malpractice litigation during their career, most verdicts are in favor of the defendant. Gatto and colleagues found medical malpractice litigation for sports orthopedic procedures resulted in outcomes favoring the defending physician or institution in 70.4% of the cases. According to Deckey and colleagues, 60% of litigation brought against physicians treating rotator cuff injuries resulted in a ruling in favor of the defendant. Likewise, Shah and colleagues found 67% of litigation cases after arthroscopic procedures result in a verdict in favor of the defendant.
Medical malpractice policies
What is unusual in this recent case is the magnitude of the award. It is far beyond any typical or recommended malpractice insurance policy, therefore, placing the surgeon at extreme financial risk.
Medical malpractice is primarily under the authority of the individual states. The details vary by state; however, some principles are uniformly followed. These include the definition of negligence, standard of care, expert witness testimony, causation or the direct connection between the surgeon’s behavior and the alleged injury, and the 51% standard of proof that the evidence “more likely than not” is consistent with the allegations.
For many states and sports medicine orthopedic surgeons who practice in those states, a typical malpractice policy would include $1 million per claim and $3 million during the policy period, usually 1 year. For spine surgeons, the standard malpractice policy will likely be $2 million per claim and $4 million during the policy. Adjustments are made based on specialty, personal claims history and the history of malpractice cases in the state of residence. Until now, sports medicine orthopedic surgery has not been considered high-risk. Based on this verdict and additional lawsuits against other high-profile orthopedic sports medicine physicians, the approach to medical malpractice when caring for high-level athletes needs to be reassessed.
Timely discussion
If you or your practice cares for athletes with significant financial opportunities, discussion with your medical malpractice carrier is timely. The recent increase in verdicts beyond the usual policy limits suggests an increase in the policy limits or other strategies to manage potential risk. Strategies may include developing a self-insurance program or becoming an employed physician of a large, self-insured organization.
Large multimillion-dollar verdicts are not unusual in obstetrics and gynecology and neurosurgery. Major medical centers have developed insurance and financial strategies to manage outlier verdicts, likely to protect employed physicians and surgeons within their system. Another approach for private practice groups may be acquiring catastrophic insurance coverage that would apply to jury awards beyond policy limits. However, these policies are often expensive and not accepted by practice members as part of their financial responsibility.
Every orthopedic surgeon should consult with an asset protection specialist if they intend to care for high-level athletes. Asset protection can provide a barrier against outlier verdicts. No one is immune to the potential risks associated with an adverse outcome after surgical management of high-level athletes despite sincere intentions, expertise and experience documented during a lifetime of surgical successes.
- References:
- Deckey DG, et al. Orthop Rev (Pavia). 2018; https://doi.org/10.4081/or.2018.7703.
- Gatto JD, et al. Orthopedics. 2022;doi:10.3928/01477447-20211101-06.
- Guardado JR. Policy research perspectives: Medical liability claim frequency among US physicians. Available at: www.ama-assn.org/system/files/policy-research-perspective-medical-liability-claim-frequency.pdf
- https://medpli.com/illinois-doctors-buying-guide-to-medical-malpractice-insurance
- www.ama-assn.org/practice-management/sustainability/medical-liability-market-research
- www.ncbi.nlm.nih.gov/pmc/articles/PMC2793838/#:~:text=Most%20policies%20offer%20limits%20of,which%20is%20usually%201%20year
- Shah KN, et al. Arthroscopy. 2018; https://doi.org/10.1016/j.arthro.2018.02.035.
- For more information:
- Anthony A. Romeo, MD, is the Chief Medical Editor of Orthopedics Today. He can be reached at Orthopedics Today, 6900 Grove Road, Thorofare, NJ 08086; email: orthopedics@healio.com.
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