A recent article, Malpractice against shoulder surgeons: what the data say sparked an interesting discussion about malpractice in the practice of shoulder surgery (see link and link).

These authors used a VerdictSearch database to identify 45 malpractice cases. The most commonly litigated procedures were rotator cuff repair (42%), MUA (13%), and humeral open reduction and internal fixation (9%).

The two most litigated complications were infection and iatrogenic nerve injury as shown below. Nerve injury has been shown to correlate positively with plaintiff victory in litigation.

Pain and loss of range of motion were the most frequent patient complaint in litigated cases. The most commonly cited symptoms for litigation against shoulder surgeons were pain (60%) and loss of range of motion (40%).

The average age of the patients was 47 years, and 53% of the cases involved a male plaintiff.

Of the 45 cases, 44% ended in physician loss, with the average indemnity paid via verdict being $1,118,714 vs. $416,875 for settlement.

This study should be viewed in the context of a recent article regarding orthopaedic malpractice, Lessons regarding the safety of orthopaedic patient care: an analysis of four hundred and sixty-four closed malpractice claims These authors investigated 464 consecutive closed malpractice claims from the nation's largest insurer of medical liability. They analyzed the claims by anatomical site, type of care rendered, type of allegation, and payment. They calculated an "impact factor" for each claim type by dividing the percentage of total payments for each type by the percentage of total claims for that type.

Their analysis revealed major concerns regarding patient safety within this series of malpractice claims. One-third of the claims alleged permanent disabling injuries, including amputations, brain damage, and major nerve damage. The highest impact allegations were failure to protect structures in the surgical field (41% of total payments to plaintiffs, 15% of all claims, impact factor of 2.7) and failure to prevent, diagnose, and/or treat complications of treatment (16% of total payments, 7% of all claims, impact factor of 2.3).

Failure of implant positioning was commonly alleged in arthroplasty cases. In claims related to fracture care, the most common allegations were related to malunions, nonunions, dislocations, failure to protect structures in the surgical field, infection, and treatment complications.

Another recent article examined the Malpractice trends in shoulder and elbow surgery

These authors queried the Westlaw online legal database to identify state and federal jury verdicts and settlements pertaining to shoulder and elbow surgery from 2010-2020 in which an orthopedic shoulder and elbow surgeon was a named defendant.

Twenty-five such malpractice lawsuits were identified. Most plaintiffs in these cases were adult men, and the majority of cases were filed in the Southwest (28%) and Midwest (28%) regions of the United States.

The most common anatomic region involved in claims was the rotator cuff (32%), followed by the glenohumeral joint (20%).

56% of these claims involved surgery. Post-treatment residual pain of mechanical nature was the most common complication seen in claims (56%) followed by complaints of nerve damage.

A large portion of claims resulted after nonoperative treatment.

The jury ruled in favor of the defendant surgeon in most cases (80%).

Another article carried a similar message. The authors of The quality of upper extremity orthopedic care in liability claims filed and claims paid investigated 108 closed upper extremity liability claims from a large United States-wide insurer. Liability claims were primarily for the care of common problems, such as fractures (n = 52; 48%) or degenerative conditions (n = 24; 26%), rather than complex, unusual conditions. The most common adverse outcomes in these claims were nonunion or malunion of fractures (n = 29; 27%), nerve injury (n = 20; 19%), and infection (n = 13; 12%). Most claims (n = 57; 53%) involved a permanent injury. The surgeon's operative skills were more commonly an issue in paid claims (n = 13; 45%) than in claims without payment (n = 14; 19%). Claims for mismanagement of fractures (n = 52; 48% of all claims) were more likely to result in payment (n = 20; 38%) than nonfracture claims (n = 10; 18%).

The reader may also like to read these posts:

Patients can sense the quality of their surgeon.

Conflicts of interest and surgeon liability

Unnecessary surgery.

To recap, the common reasons for malpractice lawsuits are delay in diagnosis and treatment, infection, nerve injury, substandard postoperative care and an improper clinical exam. Of course underlying all of this is establishing and maintaining a good relationship and communication between the patient and the surgeon, starting before surgery with a thorough evaluation with a frank discussion of the alternative treatments and extending through the followup period.

To add this blog to your reading list in Google Chrome, click on the reading list icon