Clinical Orthopaedics and Related Research ®

A Publication of The Association of Bone and Joint Surgeons ®

Symposium: Clinical Risk and Judicial Reasoning 17 articles


Beyond Informed Consent: Educating the Patient

Lawrence H. Brenner JD, Alison Tytell Brenner BA, Daniel Horowitz MD The informed consent doctrine was conceived as a basis for allowing patients to meaningfully participate in the decision-making process. It has evolved into a formal, legal document that reflects a desire by physicians and surgeons to have patients execute “waivers of liability.” In the process it has lost its educational value by shifting the emphasis to obtaining a “preoperative release” from an exchange of information upon which a patient can make important decisions about their healthcare choices. This is unfortunate because, in the process, both patients and physicians have suffered. Patients have become alienated from the informed consent process and, paradoxically, physicians and surgeons may have created more liability exposure through this alienation. We propose that by returning to an educational model, the patients will develop a greater sense of control, become more compliant, and potentially experience improved healthcare outcomes. There may also develop an alliance between the patient and the physician or surgeon, such that the seeds of an antagonistic or litigious relationship will not be planted before treatment begins. Liability reduction, therefore, may more likely arise from the educational model.

An Introduction to Medical Malpractice in the United States

B. Sonny Bal MD, MBA Medical malpractice law in the United States is derived from English common law, and was developed by rulings in various state courts. Medical malpractice lawsuits are a relatively common occurrence in the United States. The legal system is designed to encourage extensive discovery and negotiations between adversarial parties with the goal of resolving the dispute without going to jury trial. The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages. Money damages, if awarded, typically take into account both actual economic loss and noneconomic loss, such as pain and suffering.

The Expert Witness in Medical Malpractice Litigation

B. Sonny Bal MD, MBA Physicians may find serving as an expert witness to be interesting, intellectually stimulating, and financially beneficial. However, potential expert witnesses should be aware of the increased legal scrutiny being applied to expert witness testimony in medical malpractice litigation. In the past, expert witnesses received absolute immunity from civil litigation regarding their testimony. This is no longer the case. Expert witnesses may be subject to disciplinary sanctions from professional organizations and state medical boards. In addition, emerging case law is defining the legal duty owed by the expert witness to the litigating parties. Orthopaedic surgeons who serve as expert witnesses should be familiar with the relevant Standards of Professionalism issued by the American Academy of Orthopaedic Surgeons.

Twenty Years of Evidence on the Outcomes of Malpractice Claims

Philip G. Peters JD Two decades of social science research on the outcomes of medical malpractice claims show malpractice outcomes bear a surprisingly good correlation with the quality of care provided to the patient as judged by other physicians. Physicians win 80% to 90% of the jury trials with weak evidence of medical negligence, approximately 70% of the borderline cases, and even 50% of the trials in cases with strong evidence of medical negligence. With only one exception, all of the studies of malpractice settlements also find a correlation between the odds of a settlement payment and the quality of care provided to the plaintiff. Between 80% and 90% of the claims rated as defensible are dropped or dismissed without payment. In addition, the amount paid in settlement drops as the strength of the patient’s evidence weakens.

Limiting Exposure to Medical Malpractice Claims and Defamatory Cyber Postings via Patient Contracts

Michael Sacopulos JD, Jeffrey J. Segal The documents patients sign on admission to a medical practice can constitute a legal contract. Medical practices around the country are attempting to use these documents as a prospective defense against medical malpractice claims. Protective contractual provisions are often attacked on grounds that they are legally void as a result of unconscionability. Widespread use of arbitration clauses have been met with mixed success. Arbitration clauses that limit damages available in medical negligence cases have been stricken in some states as having provisions that impose excessive entry costs on a patient starting the arbitration process. Other provisions relating to prequalification requirements for expert witnesses are now being used with increasing frequency. Clauses have even been placed in patient contracts that address cyber postings of adverse claims against physicians. Prospective patient contracts may be an effective means to limit exposure to medical malpractice lawsuits and to minimize defamatory cyber postings.

Juries and Medical Malpractice Claims: Empirical Facts versus Myths

Neil Vidmar JD Juries in medical malpractice trials are viewed as incompetent, antidoctor, irresponsible in awarding damages to patients, and casting a threatening shadow over the settlement process. Several decades of systematic empirical research yields little support for these claims. This article summarizes those findings. Doctors win about three cases of four that go to trial. Juries are skeptical about inflated claims. Jury verdicts on negligence are roughly similar to assessments made by medical experts and judges. Damage awards tend to correlate positively with the severity of injury. There are defensible reasons for large damage awards. Moreover, the largest awards are typically settled for much less than the verdicts.

Medical Liability Reform Crisis 2008

Stuart L. Weinstein MD The crisis of medical liability has resulted in drastic increases in insurance premiums and reduced access for patients to specialty care, particularly in areas such as obstetrics/gynecology, neurosurgery, and orthopaedic surgery. The current liability environment neither effectively compensates persons injured from medical negligence nor encourages addressing system errors to improve patient safety. The author reviews trends across the nation and reports on the efforts of an organization called “Doctors for Medical Liability Reform” to educate the public and lawmakers on the need for solutions to the chaotic process of adjudicating medical malpractice claims in the United States.

The Regulation of Medical Malpractice in Japan

Robert B Leflar JD, MPH How Japanese legal and social institutions handle medical errors is little known outside Japan. For almost all of the 20th century, a paternalistic paradigm prevailed. Characteristics of the legal environment affecting Japanese medicine included few attorneys handling medical cases, low litigation rates, long delays, predictable damage awards, and low-cost malpractice insurance. However, transparency principles have gained traction and public concern over medical errors has intensified. Recent legal developments include courts’ adoption of a less deferential standard of informed consent; increases in the numbers of malpractice claims and of practicing attorneys; more efficient claims handling by specialist judges and speedier trials; and highly publicized criminal prosecutions of medical personnel. The health ministry is undertaking a noteworthy “model project” to enlist impartial specialists in investigation and analysis of possible iatrogenic hospital deaths to regain public trust in medicine’s capacity to assess its mistakes honestly and to improve patient safety and has proposed a nationwide peer review system based on the project’s methods.

Medical Malpractice and the Sports Medicine Clinician

Steven M. Kane MD, Richard A. White MD More individuals are participating in athletics today than ever before. Physicians treating athletes confront unique diagnostic and treatment challenges and an increased risk of legal liability. The key areas regarding liability are preparticipation examinations, determination of eligibility, evaluation of significant on-field injuries, and information disclosure. The issues surrounding preparticipation physicals and determination of eligibility are closely linked. Physicians must be prepared to seek guidance from specialists, particularly when there are cardiac, spinal, or neurologic issues. Appropriate on-field evaluation of potential concussions, spinal injuries, and heat stroke are key areas of concern for the physician. Privacy issues have become more complex in the age of federal regulation. Physicians and all athletic staff should be aware of privacy laws and ensure proper consent documentation is obtained from all athletes or their parents. All athletic programs should develop a plan that details roles and procedures to be followed in a medical emergency. Sports caregivers must take affirmative steps that better protect their patients from harm and physicians from legal liability.

The Problem of the Aging Surgeon: When Surgeon Age Becomes a Surgical Risk Factor

Ralph B. Blasier MD, JD The question of when a surgeon should retire has been the subject of debate for decades. Both anecdotal evidence and objective testing of surgeons suggest age causes deterioration in physical and cognitive performance. Medical education, residency and fellowship training, and technology evolve at a rapid pace, and the older a surgeon is, the more likely it is he or she is remote from his or her initial education in his or her specialty. Research also shows surgeons are reluctant to plan for retirement. Although there is no federally mandated retirement age for surgeons in the United States, surgeons must realize their skills will decline, a properly planned retirement can be satisfying, and the retired surgeon has much to offer the medical and teaching community.

Medical Malpractice: The Experience in Italy

Francesco Traina MD At the present time, legal actions against physicians in Italy number about 15,000 per year, and hospitals spend over €10 billion (~US$15.5 billion) to compensate patients injured from therapeutic and diagnostic errors. In a survey summary issued by the Italian Court for the Rights of the Patient, between 1996 and 2000 orthopaedic surgery was the highest-ranked specialty for the number of complaints alleging medical malpractice. Today among European countries, Italy has the highest number of physicians subject to criminal proceedings related to medical malpractice, a fact that is profoundly changing physicians’ approach to medical practice. The national health system has paid increasingly higher insurance premiums and is having difficulty finding insurance companies willing to bear the risk of monetary claims alleging medical malpractice. Healthcare costs will likely worsen as Italian physicians increasingly practice defensive medicine, thereby overutilizing resources with the goal of documenting diligence, prudence, and skill as defenses against potential litigation, rather than aimed at any patient benefit. To reduce the practice of defensive medicine and healthcare costs, a possible solution could be the introduction of an extrajudicial litigation resolution, as in other civil law countries, and a reform of the Italian judicial system on matters of medical malpractice litigation.

Surgeon Demographics and Medical Malpractice in Adult Reconstruction

Brian J. McGrory MD, B. Sonny Bal MD, MBA, Sally York MN, RNC, William Macaulay MD, David B. McConnell JD Orthopaedic adult reconstruction subspecialists are sued for alleged medical malpractice at a rate over twice that of the physician population as a whole, and the rate appears disproportionately high in the first decade of practice. The overall risk of a malpractice claim is related to years spent in practice. After 30 years in an adult reconstruction practice, the cumulative rate of being sued at least once is over 90%. Previous investigations suggest factors such as practice setting and size, fellowship training, years in practice, volume, and location of practice correlate with malpractice risk. In contrast, we were unable to identify any relationship between the type, size, or location of practice, fellowship training, or surgery volume and the risk of an adult reconstruction surgeon being named as a defendant in a malpractice suit.,[object Object]

Apologies and Medical Error

Jennifer K. Robbennolt PhD, JD One way in which physicians can respond to a medical error is to apologize. Apologies—statements that acknowledge an error and its consequences, take responsibility, and communicate regret for having caused harm—can decrease blame, decrease anger, increase trust, and improve relationships. Importantly, apologies also have the potential to decrease the risk of a medical malpractice lawsuit and can help settle claims by patients. Patients indicate they want and expect explanations and apologies after medical errors and physicians indicate they want to apologize. However, in practice, physicians tend to provide minimal information to patients after medical errors and infrequently offer complete apologies. Although fears about potential litigation are the most commonly cited barrier to apologizing after medical error, the link between litigation risk and the practice of disclosure and apology is tenuous. Other barriers might include the culture of medicine and the inherent psychological difficulties in facing one’s mistakes and apologizing for them. Despite these barriers, incorporating apology into conversations between physicians and patients can address the needs of both parties and can play a role in the effective resolution of disputes related to medical error.

A Modified No-fault Malpractice System Can Resolve Multiple Healthcare System Deficiencies

Jeffrey J. Segal MD, FACS, Michael Sacopulos JD Medical professional liability in the United States, as measured by total premiums paid by physicians and healthcare facilities, costs approximately $30 billion a year in direct expenses, less than 2% of the entire annual healthcare expenditures. Only a fraction of those dollars reach patients who are negligently injured. Nonetheless, the tort system has far-reaching effects that create substantial indirect costs. Medical malpractice litigation is pervasive and physicians practice defensively to avoid being named in a suit. Those extra expenditures provide little value to patients. Despite an elaborate existing tort system, patient safety remains a vexing problem. Many injured patients are denied access to timely, reasonable remedies. We propose a no-fault system supplemented by a variation of the traditional tort system whereby physicians are incentivized to follow evidence-based guidelines. The proposed system would guarantee a substantial decrease in, but not elimination of, litigation. The system would lower professional liability premiums. Injured patients would ordinarily be compensated with no-fault disability and life insurance proceeds. To the extent individual physicians pose a recurrent danger, their care would be reviewed on an administrative level. Savings would be invested in health information technology and purchase of insurance coverage for the uninsured. We propose a financial model based on publicly accessible sources.