Orthopedic Medical Legal Advisor

For several years, media reports alerted the U.S. public to inconsistencies in the delivery, consumption, costs and outcomes of health care. As a result, the public is increasingly aware of the uneven nature of the quality and costs associated with many medical treatments, such as total knee replacement. In recent years, the number of TKRs performed has increased, which has led to scrutiny from payers about who shoulders the costs of the operation.

In medical malpractice litigation, documentation of the informed consent process can play a major role. Medical providers usually believe that an accurate informed consent must capture all the known risks of an intervention and that the signed consent can be an effective defense to a medical malpractice lawsuit. Finely printed informed consent forms can run into several pages, often prepared by hospital attorneys and committees to capture any and all foreseeable outcomes of surgery.

Many surgeons have consulting, design and other relationships with orthopedic manufacturers. How are industry and surgeons to judge the appropriate market value of time and service delivered by a surgeon consultant? This is relevant since the health care industry has been under increasing scrutiny.

The widespread adoption of the internet and advancements in network and cellphone technology have altered the way in which medical professionals work. Cellphones, which combine utilities other than telephone functions, are used by medical personnel, including those who universally work in ORs.

Orthopedic surgery is a technical field that carries professional risk. The results from most orthopedic interventions are usually readily visible on radiographs. As such, the profession is among the most frequently involved in litigation related to suboptimal outcomes that are distressing for the surgeon and patient. Most orthopedic surgeons are aware they will be accused of medical malpractice at least once in their career. Once served with a lawsuit, the surgeon becomes a defendant in a medical malpractice lawsuit and enters an unfamiliar world in which the professional language, rules and procedures are different from medicine.

Defensive medicine is a subject of intense debate among legal and medical scholars. Some physicians have argued the ordering of otherwise unnecessary diagnostic tests as a defensive shield against a medical negligence claim is a reality of medical practice in the United States. Defensive medicine, in turn, leads to increased health care expenditures. These physicians also maintain that medical liability reform designed to limit or control medical negligence claims can decrease health care expenditures by eliminating or reducing diagnostic tests or procedures done with the sole purpose of reducing liability exposure.

With rapid changes in U.S. health care delivery, particularly with mergers of hospitals and insurance companies, physicians are concerned. One inquiry relates to whether physician groups can similarly merge to increase practice efficiency, gain size advantages in negotiations and protect physician incomes. In this column, we explore antitrust laws and how they apply to physicians and physician groups.

It is logical that physician impairment, whether from substance abuse or physical exhaustion from overwork and lack of sleep, can contribute to errors during patient treatment. Since the seminal 1984 Libby Zion case, there has been attention focused on physician working hours with the goal of ensuring patient safety.

The classic 1898 New York legal case of Pike v. Honsinger was one of the leading cases in American judicial history to discuss and describe the meaning of professional standard of care. It is a historically significant milestone because it followed the then-recent policy decision by Johns Hopkins University to limit medical school admission to only individuals who had an undergraduate degree or its equivalent. Prior to this decision by Johns Hopkins, medical schools were private, for-profit enterprises with no academic standards or admissions requirements.

In previous articles, we have discussed the complex issue of assessing malpractice liability for physician judgment. Courts have traditionally been deferential to the exercise of individual physician judgment, when such judgment is asserted as a defense in medical malpractice litigation.