Avoiding Malpractice Claims in Orthopedics
Orthopaedic surgery ranks fifth among medical specialties in the total number of claims filed and also fifth in the cumulative amount of financial payments. Approximately 30% of filed cases ultimately result in some form of financial payment. The driving force behind litigation is financial gain for patients’s lawyers and compensation for patients. The motive is not the improvement of medical delivery systems or individual doctor behavior.
The purpose of this article is to provide constructive insight into some factors within the orthopedic surgeon’s control that can reduce claims and lawsuits. Before you make that incision, consider the following concerns. Most of these may already be part of your clinical practice, but are nonetheless worthy of review. Bear with me the article is lengthy and written in detail as every physician is certain to face a malpractice suite atleast once in their career and it always helps taking all the precautions to avoid it.
The top factors that actually contributed to patient injury are:
- Problem with clinical judgment (38%)
- Technical skills (23%)
- Communication (22%)
- Patient behaviors (20%)
- System failures (14%)
- Documentation (13%)
What are main allegations patients claimed against orthopaedic surgeons
15 % – Failure to protect structures in the surgical field, i.e. nerves, bony structures
14% – Management of fractures, i.e. errors perceived as nonunion or malunion, infections
11% – Failure to prevent, diagnose or properly treat infections
8% – Implant not placed in proper position
7% – Failure to treat or recognize complications from surgery
4% – Medication errors.
Aspects of patient management that contributed to cases being lost and resulting in financial settlement
|Poor initial history and examination: ‘it is just a sprain’||Inadequate consent and poor explanation and record of reasons for procedure|
|No radiographs, or wrong radiographs ordered||No record of identification and protection of nerves in operating note|
|Never seen by a consultant (orthopaedic)||Poor documentation of complications and discussion with patient and relatives|
|Poor handover, lack of treatment plan||Poor technique, e.g. malposition of prosthetic components|
|Poor timing of surgery||Operation carried out by surgeon who was not part of the local team|
|Poor fracture reduction, no on-table films|
|Operation carried out by inappropriate level of surgeon, leading to substandard surgery||Operation carried out by inappropriate level of surgeon, leading to substandard surgery|
Informed consent issues
It is understandable that the process of providing legally acceptable informed consent can be a difficult task for orthopedic surgeons, particularly in the modern era of emerging technologies, enhanced perception of conflicts of interest, and surgeon-industry relations. From a legal standpoint, recognize that the law requires patients be advised of material and inherent risks of any procedure as well as alternatives to the procedure as demonstrated.
Components of Informed Consent
There are 4 components of informed consent:
- You must have the capacity (or ability) to make the decision.
- The medical provider must disclose information on the treatment, test, or procedure in question, including the expected benefits and risks, and the likelihood (or probability) that the benefits and risks will occur.
- You must comprehend the relevant information.
- You must voluntarily grant consent, without coercion or duress.
The necessary components to be documented in consent are
- The Diagnosis and present condition of patient.
- The proposed treatment.
- The alternative treatment available including conservative.
- The Benefits of the proposed treatment and also the outcome disease if procedure not accepted by patient.
- The Risk and complications involved
- All Life threatening complications including death.
- All major complications whose incidence >1%
- All Minor complication with incidence >5%
- Person performing the surgery and persons present during surgery.
- Sign of patient and witness attendant.
- Sign of Surgeon and witness preferably attending nurse.
The fear of litigation has led to informed consent becoming less of a process of communication, and more of an effort by a physician or surgeon to create a litigation shield. In a review on this subject titled “Consent Forms as Part of the Informed Consent Process: Moving Away from Medical Miranda,” Ali and colleagues astutely observed “… this approach elevates the formalistic provisions of information above all other considerations in the informed consent process.” The article also notes that a formalistic approach to informed consent “perpetuates a view of informed consent as something detached from the unique rhythm of the clinical setting — something imposed on medicine by an uncomprehending legal system.” However safe the idea of forms, fine print, and other mechanistic means of capturing every possible risk might seem, a formalistic model of informed consent detracts from the values of communication and trust, which are at the heart of obtaining proper consent from a patient.
Here are some customizable consent forms which are carefully drafted and are free to download and use in your practice.
Document testing and results
Before engaging in any surgical procedure the surgeon should clearly document the need for the procedure. Test results should be included in the patient’s chart and should be referenced in the patient’s workup or clinic notes. If there are any inconsistencies in results, the surgeon should document that these inconsistencies were explained to the patient and why the surgeon and patient have elected to proceed with surgical intervention. Missing, incomplete or inconsistent test results in the preoperative records can be critical evidence against the surgeon in the event of litigation.
Lawsuits filed because of wrong-site surgery are difficult to defend because the negligence is apparent. As difficult as they are to defend, they are also simple for the surgeon to prevent. Follow prescribed time-out procedures rigorously and make certain that everyone on your team does the same. This is particularly true for busy surgeons who are running two or more operating rooms with residents and fellows; in such scenarios a break in the schedule, such as a delay in the next case, and the staff substituting a different patient to keep the schedule moving, can be particularly dangerous.
Remember that wrong-site surgery can happen to the best surgeons; constant diligence is the only antidote to preventing this obvious problem. Wrong-site surgery happens when several individual links in a chain break simultaneously; keep an eye open for each step you normally take to prevent wrong-site surgery from happening and do not accept a breach of any step.
What goes in sometimes shouldn’t
A unique concern that orthopedic surgeons confront is the use of mislabeled, mismatched, mis-sized or wrong-sided implants. Like the wrong-site surgery cases, a legal case involving a mismatched implant is simple for a jury to understand and very difficult for an orthopedic surgeon to defend.
- The surgeon should request the implant size and relay related information to the circulating nurse, who should then request the implant from the manufacturer’s representative.
- The surgeon should clearly identify the type, size and configuration (left or right if appropriate to the implant) in his/her request for the implant. The surgeon should never rely upon the rest of the surgical team.
- The manufacturer’s representative should verbally and visually confirm the implant identity to the circulating nurse.
- Before opening the implant, the circulating nurse should verbally and visually confirm the implant identity with the surgeon. The surgeon should visually inspect the package label to confirm that it is the correct implant.
- After verbal and visual confirmation, the circulator should open the box and check that the exterior and interior labeling matches, and then deliver the implant to the sterile field.
- Prior to implantation, the surgeon should visually confirm that any markings on the implant properly identifying the implant as the size and configuration requested. The implants may be physically etched with a size and other identifying information. These markings should be cross-checked with the box label.
- Following surgery, the implant documentation placed in the patient’s chart should be cross-checked again by the surgeon to confirm that the correct implant was used. Even though the surgery is over, a mistake can be caught and dealt with before the patient leaves the room, rather than later discovery.
Negligence related non technical errors due to consent , wrong-site surgery, injuries in the OT , foreign body left in situ , diathermy and skin-preparation burns , operator error , incorrect equipment, medication errors and tourniquet injuries .
“These can be avoided by following the WHO OT Checklist and need to be attached in the file for Medico legal purpose”
THE “ART” OF PATIENT-PHYSICIAN COMMUNICATION
The American Association of Orthopaedic Surgeons (AAOS) strongly endorsed the communication aspect of the patient-physician relationship in its advisory statement “The Importance of Good Communication in the Physician-Patient Relationship” . In that statement, the AAOS described patient-focused communication as open, honest dialogue that builds trust and promotes healing. Taking it a step further, the AAOS commented that good communication has a favorable impact on patient behavior, patient care outcomes, and patient satisfaction; as a consequence, it often reduces the incidence of malpractice lawsuits. According to the AAOS, physicians who practice patient- focused communication show empathy and respect, listen attentively, elicit patients’ concerns and calm fears, answer questions honestly, inform and educate patients about treatment options, involve patients in medical care decisions, and demonstrate sensitivity to patients’ cultural and ethnic diversity.
The importance of developing rapport with patients cannot be overemphasized. Effective communication skills are a critical tool that assists the physician in establishing that optimal patient rapport. Physicians need to keep in mind that today’s health care consumers, particularly those in the baby boomer and younger age groups, have much more medical knowledge than senior citizens. Both young and old, however, often judge the quality of care received on the basis of the physician-patient interaction. Certainly, the physician’s skill and reputation play an important role in a patient’s confidence. However, many if not most patients assume that physicians have the requisite technical skill to treat their medical problems. From the patient’s perspective, therefore, what separates the adequate or average physician from the truly great physician is how well the physician practices the “art” of medical care, conveying those highly valued human skills of compassion and caring concern that patients seem to need so much. All too often, when physicians do not communicate caring concern, especially when the care is painful, difficult, or results in less-than-optimal outcomes, an inevitable cycle of miscommunication occurs among patient, family, and physician. Under these circumstances, patients who express their anger and frustration may cause the physician to react defensively in a way that may be perceived as hostile or arrogant. Most often it is this response that causes the patient to seek the advice of an attorney, because poor communication between a physician and patient can lead an already angry, dissatisfied patient to believe the care was poor even when it was entirely appropriate.
Communication is something we all take for granted, which is why we don’t consciously think about our communication habits and behaviors. A crucial point in the encounter is the physician’s first greeting of the patient. Does the physician show personal concern by offering a handshake and a warm smile? This action instantly puts the patient at ease in what could otherwise be an unfamiliar, if not frightening, environment. An explanation of the agenda for the visit sets the patient’s expectations and aligns them with the physician’s. Maintaining eye contact rather than staring off into space, out the window, or at notes indicates that the physician cares about the patient. Additionally, maintaining eye contact cues the physician on the patient’s reactions as conveyed by body positioning, eye movement, or other body language. The body language of the physician is also a powerful communicator of attentiveness to what the patient is saying. A sitting position demonstrates an interest and an unhurried attitude, while a standing position may give the impression of control, an authoritative attitude, and being rushed.
The bottom line is this: patients who enjoy a positive therapeutic rapport with their physicians do so because mutual expectations are in line and there is good communication flow from patient to physician and physician to patient. The key ingredient is that the patient is left with the strong sense that the physician cares about the care being given and the person to whom the care is rendered. A model developed by the Bayer Institute for Health Care Communication illustrates this dynamic well. The “4E” model uses the approach of engage, empathize, educate, and enlist for obtaining information and furthering the relationship.
ENCOUNTERS WITH THE ANGRY PATIENT
Few encounters are more challenging than confronting the angry patient. The patient who is angry—with his doctor, about the care he is or is not receiving, or about an outcome of care—is a lawsuit waiting to happen. The physician, not the lawyer, is in the best position to defuse the patient’s anger .Remember, anger is the way people respond to unmet needs or expectations. Most of the time the anger (rightly or wrongly) is directed toward the physician because he or she is the most convenient and visible target. One of the worst mistakes a physician can make when dealing with angry patients or families is to avoid them As difficult and unpleasant as it may be, the most effective way to defuse anger is to listen, empathize, and apologize that things did not turn out the way the patient expected or hoped. When faced with someone who is upset or angry, it may be prudent to remain silent and allow that person to talk about the problem. Any person confronted by an angry, complaining patient is likely to feel personally affronted. In those moments, one’s natural tendency is to become defensive or hostile. This is especially true when the complaint is unwarranted. While the easiest and most natural reaction is to strike back, the better practice is to avoid fighting words, listen without interruption, avoid becoming defensive, express empathy, ask questions, determine what the patient wants, explain what can and cannot be done, and discuss alternatives
DISCLOSING MEDICAL ERRORS
One of the most difficult aspects of medical practice is dealing with adverse outcomes. A complication that occurs during medical care or treatment is distressing to the physician, the pa-tient, and the patient’s family. When the patient experiences an adverse outcome, it is always better to have a forthright conversation with the patient, explaining what happened and why. The best reason for disclosure is that it is the one sure way of assuring that the patient will continue to trust the physician. Nothing defuses patient anger better and faster than a sympathetic, open-minded physician who is willing to discuss not just the successful outcomes of care but the glitches and problems that arise as well.
Studies have shown that what patients want from their physicians following an error is an apology and the assurance that what happened to them will not happen to someone else. Fear of litigation is frequently cited as the reason not to disclose errors, but studies show that this fear is largely exaggerated. Malpractice litigation is not nearly as prevalent as physicians think. At least 4 major studies have found that only 1% to 2% of negligent adverse events led to actual claims. Most patients who experience iatrogenic injuries or are dissatisfied with their care ignore the problem or find other ways to resolve the problem, including changing physicians On the flip side, several studies have shown that failure to be honest with patients is a frequent cause of litigation. Witman et al found that patients were significantly more likely to sue if the physician did not disclose an error. In another study, researchers found that patients’ decision to sue was influenced not only by the original injury but also by insensitive handling and poor communication afterward. Patients were more likely to sue when they believed there was a “cover-up” of information.
To summarize, when an adverse or less-than-optimum out-come occurs, it is recommended that the physician implement the following plan of action:
- Recognize the patient’s frustration and possible fear
- Recognize your own feelings of disappointment and anxiety
- Don’t panic—keep lines of communication open
- Express regret that the adverse result occurred but avoid finding fault or blaming others
- Explain what happened and the proposed plan of action in terms the patient can understand
- Keep the patient and family informed and involved in subsequent treatment plans and discussions; document the discussion in the medical record
Factors that help in defending cases
“Always leave followup consultation open never discharge the patient from your care. Even if everything is fine and patient is doing well document all findings and write in advice review after a month or review SOS. A Simple line can come in your defense if any late complication occurs and it would show you had anticipated it even if patient doesn’t return to you “
An orthopedic surgeon who takes the time to make himself or herself aware of the potential complications of surgery, takes reasonable actions to reduce the risk of those complications, communicates with his or her patients so that they form a therapeutic alliance in the face of the inherent uncertainty of surgery, and instills in the patient a sense that they are partners is likely to have the patient return to the surgeon for unanswered questions rather than to an attorney.