Abstract
Medical malpractice litigation in the United States has resulted in the widespread adoption of defensive medicine practices. Orthopaedic surgery is among the specialties most likely to face a malpractice lawsuit, and hip-related surgeries are commonly involved. This study aimed to analyse malpractice litigation as it relates to hip surgery in the United States. The purpose of this study was to seek answers to the following questions: Has there been an increase or a decrease in the number of hip surgery malpractice cases in recent years? What are the most common reasons for a patient to pursue litigation? Which surgical complications are most likely to result in a lawsuit? What trends do we see in terms of outcomes? The Westlaw legal database was queried for all relevant cases from 2008 to 2018. A retrospective review of cases was conducted and descriptive analyses were performed in order to identify factors associated with hip surgery malpractice litigation. A total of 82 cases were analysed. There was a downtrend in the number of cases per year. Total hip arthroplasty (47 cases, 57.3%) was the procedure most often involved. Procedural error was noted as a reason for litigation in 71 (86.6%) cases. Neurological injury (22 cases, 26.8%), malpositioned hardware (15 cases, 18.3%) and leg length discrepancy (8 cases, 9.8%) were the most common complications listed. The majority of cases resulted in a verdict in favour of the defendant orthopaedic surgeon (48 cases, 58.5%). The mean payout for a plaintiff verdict (20 cases, 24.4%) was $1,647,981 (range, $1,852–$7,000,000) and the mean payout for a settlement (13 cases, 15.9%) was $657,823 (range, $49,000–$3,000,000) (p = 0.063). The study concluded that, within the 10-year period, there was a significant downtrend in hip surgery malpractice cases filed per year. Orthopaedic surgeons were found liable in the minority of cases. As expected, verdicts in favour of plaintiffs resulted in seemingly higher payouts than settlements.
Introduction
Before the 1960s, medical malpractice lawsuits in the United States were rare and thus had minimal impact on medical practice. 1 Since that time, malpractice claims have become more common, pressuring physicians to engage in “defensive medicine” in an effort to avoid litigation. Physicians practising in this manner may order extraneous tests, perform unnecessary procedures, or refrain from treating high-risk patients, all in an effort to avoid liability. 2 The practice of defensive medicine is widespread and contributes to the high costs imposed on the United States healthcare system, with some estimates as high as $45.6 billion per year. 3 These concerns have become a topic of national debate, leading to the adoption of “tort reform” measures at both state and federal levels in an attempt to reduce malpractice-related expenditures. 1
In a United States national survey published in 2012, 96% of over 1200 orthopaedic surgeons admitted to practising defensive medicine. 4 Given that orthopaedic surgery is among the medical specialties most likely to face a malpractice lawsuit, this behaviour is purportedly justified. A study published by Jena et al. showed that roughly 14% of orthopaedic surgeons will face a malpractice claim annually, 5 and the national cost of defensive medicine practices for this specialty alone was estimated at $2 billion each year. 4 Among orthopaedic procedures, Rynecki et al. reported hip surgeries were commonly involved in malpractice lawsuits. 6 As the US population continues to age, we can expect an associated increase in hip-related pathology and procedures (total hip arthroplasty (THA)).7,8 THA has been shown to be one of the most beneficial operations in terms of cost-effectiveness and quality of life improvement. 7 For these reasons, we can anticipate an increase in the number of hip surgeries performed and a concomitant increase in corresponding malpractice claims. 8
In this study, we analyse the elements commonly associated with malpractice cases involving orthopaedic hip surgery in the United States. These results will provide insights that enable orthopaedic surgeons to better understand the nature of hip surgery malpractice litigation and incorporate this knowledge into their practices, potentially reducing defensive medicine behaviour and improving patient outcomes.
Methods
The Westlaw legal database (Thomas Reuters, New York, NY) was queried for all legal cases using the search terms: “medical malpractice” and “hip surgery”. All cases between 31 December 2007 and 1 January 2018 were collected. The initial search yielded 289 cases. The following data were collected: patient age and sex, location, level of the court, defendant characteristics, type of surgical procedure, reasons for lawsuit, complications associated with the alleged malpractice, jury verdict and monetary award. Inclusion criteria required cases to involve at least one defendant orthopaedic surgeon, orthopaedic practice, or orthopaedic medical group. Duplicate cases and those unrelated to orthopaedic hip surgery were excluded.
Data analyses were performed to characterise the study population, including chi-squared tests, Fisher’s exact tests, t-tests and linear regression, where appropriate. A p-value of less than 0.05 was considered statistically significant.
Results
A total of 82 legal cases were included in this study. The mean age of the affected patients was 57 ± 20 years old and the majority (60%) were female (Table 1). Malpractice lawsuits were filed in 23 states. New York (13 cases, 16%), California (13 cases, 16%), Pennsylvania (12 cases, 15%) and Florida (9 cases, 11%) had the most cases listed. Of the cases in which the level of court was specified, 23 cases (40%) were resolved at the trial court level, 21 cases (37%) were resolved in an appellate court, and 13 (23%) cases were resolved in a supreme court. Most of the lawsuits were involved individual practitioners, but 36 (44%) cases involved multiple parties, and a hospital or orthopaedic practice was involved in 20 (24%) cases. THA (47 cases, 57%), open reduction internal fixation (ORIF) (15 cases, 18%) and THA revision (7 cases, 9%) were the procedures most often involved in our cohort of cases (Table 2).
Demographics, geographics and case details.
SD: standard deviation.
Procedure type, reasons for lawsuit, complications, verdicts and awards.
THA: total hip arthroplasty; ORIF: open reduction internal fixation; SI: sacroiliac; SCFE: slipped capital femoral epiphysis.
There was a reduction in the number of malpractice cases filed per year, with the majority of cases (52%) resolved from 2008 to 2011 (the first three years of the study period) (Figure 1). Regression analysis of number of cases by year showed the downtrend was significant. (p < .05, R2 = .64)
Graph showing the number of cases resolved per year.
Procedural error was the most common reason for litigation, noted as the basis in 71 (87%) cases. Failure to diagnose and failure to treat in a timely manner were noted less often, in 22 (27%) and 21 (26%) cases, respectively (Table 2).
Neurological injury (22 cases, 27%), malpositioned hardware (15 cases, 18%) and leg length discrepancy (8 cases, 10%) were the most common alleged complications associated with these lawsuits (Table 2).
Complications and frequency of a plaintiff verdict.
Overall, the most common outcome was a verdict in favour of the defendant orthopaedic surgeon (48 cases, 59%). By contrast, 20 (24%) cases resulted in a plaintiff verdict, 13 (16%) cases resulted in a settlement and 1 (1%) case was dismissed. Among complications found in five or more cases, malpositioned hardware and neurological injury were most commonly associated with a plaintiff verdict (33% and 23%, respectively) (Table 3). The mean payout for a plaintiff verdict was $1,647,981 (range, $1852–$7,000,000); the mean payout for a was $657,823 (range, $49,000–$3,000,000) (p = 0.063).
Discussion
Over the last 60 years, the risk of medical malpractice litigation in the United States has placed significant strain on physicians, pressuring many to practise medicine defensively. These defensive practices have become common in a variety of specialties and have burdened the United States healthcare system with billions of dollars in unnecessary costs. Studies have shown orthopaedic surgery is one of the medical specialties most affected by malpractice litigation,5,6 which accounts for the widespread adoption of defensive medicine practices within this field. 4 Hip-related surgeries were found to be among the orthopaedic procedures most frequently involved in a malpractice lawsuit, 6 and the demand for these procedures is expected to increase as our United States population continues to age.8,9 This study set out to investigate medical malpractice litigation as it relates to orthopaedic hip surgery so that orthopaedic surgeons can better understand the nature of malpractice claims and explore their use of defensive medicine.
Geographic analysis showed that most cases were listed in New York, California, Pennsylvania and Florida (Table 1). This is less likely a representation of the litigious nature of these states than a reflection of their larger populations; they represent four of the five most populous states in North America. 10 Texas, also in the top five in terms of population, was underrepresented in our study. Similar research by Shah et al. investigated malpractice litigation as it relates to arthroplasty. In contrast to our findings, they found most cases were listed in New York, California and Texas, with Pennsylvania and Florida being under-represented. 11 Another study by Galey et al. investigated medical malpractice in paediatric orthopaedics and found appropriate representation by population in New York, California and Florida, but under representation in Texas and Pennsylvania. 12 These differences may be attributable to varying reporting rates and requirements in each state, but further investigation is necessary to understand these inconsistencies.
The majority of cases were tried to verdict or settled at the trial court level, followed closely by disposition in appellate courts (Table 1). The minority of cases were resolved in a supreme court. This properly reflects the hierarchy of each state court system.
In the majority of cases, a single orthopaedic surgeon was the defendant, but 44% of the cases involved multiple parties with roughly 24% including a hospital or orthopaedic practice (Table 1). This may reflect the circumstance of “joint liability” in cases where multiple medical professionals are alleged to have contributed to a poor outcome during a surgery or “several liability” in which multiple parties are sued, each for different acts of negligence. 13 A recent report by CRICO Strategies (Harvard Medical Institutions Inc.) included 124,000 medical malpractice cases across the United States, with representation from all medical specialties. 14 This study found a growing number of defendants per case within the 10-year study period, with an average of 37% including two or more defendants. 14 This trend may reflect the movement toward medical specialisation in the United States, where patients often receive care from several physicians, increasing the frequency with which multiple parties are involved. 14 However, it may also reflect the tendency for plaintiffs to add policyholders to a claim in so-called “stacking” efforts; this is a commonly used strategy to increase insurance coverage and, thus, potential compensation. 14
We detected a significant unexpected downtrend in the number of malpractice cases from 2008 to 2018 (Figure 1). Interestingly, one of the key findings in the report by CRICO Strategies was a 27% decrease in the frequency of malpractice claims in all specialties over their 2007–2017 study period, consistent with our findings. 14 The report goes on to suggest the following as possible contributing factors: (1) recent improvements in patient safety have led to fewer adverse events; (2) successful tort reform measures have limited or even precluded the ability to sue; and (3) in recent years, there have been greater financial risks for prosecuting attorneys. 14
THA, ORIF and THA revision were found to be the most common hip surgeries involved in our cohort of malpractice cases (Table 2). It is important to note that THA is one of the most frequently performed procedures in the United States, with over 400,000 performed each year. 15 The ubiquity of this procedure contributes to the large number of associated malpractice cases. However, another contributing factor is probably the complex nature of the operation, which requires considerable dissection and manipulation of the joint and surrounding soft tissue. This is expected to increase the risk of complications. In general, THA, ORIF and THA revision are relatively complex procedures, which in part explains their representation in our study. This is in contrast to other procedures such as resurfacing, biopsy and slipped capital femoral epiphysis (SCFE) pinning that are relatively less complex and were found to be associated with fewer lawsuits.
Procedural error was the most common reason for litigation, listed in 87% of cases (Table 2). This was followed by failure to diagnose and failure to treat in a timely manner, listed in 27% and 26% of cases, respectively. These findings are comparable to those reported by Rynecki et al. in a study investigating malpractice in orthopaedic surgery as a whole; procedural error, failure to diagnose and failure to treat were documented in 88%, 40% and 40% of cases, respectively. 6
Analysis of the alleged complications associated with each malpractice claim demonstrated neurological injury, malpositioned hardware and leg length discrepancy to be the most common. Patterson et al. described malpractice trends associated with THA and THA revision in the state of New York. 8 The most common complication was found to be nerve injury, followed by dislocation and leg length discrepancy. 8 While high rates of nerve injury and leg length discrepancy are consistent with our findings, we did not find a similar high rate of alleged dislocation. Several studies conducted in Europe consistently found nerve injury, specifically sciatic nerve injury, to be the main complication contributing to a malpractice claim following hip-related surgery,16 –18 in agreement with our findings.
It is important to note that nerve injury following THA is relatively rare with an incidence ranging from 0.6% to 3.7%. 19 However, this type of injury can be devastating, which may explain the propensity to sue. In an interesting review article, Unwin et al. report that legal action for nerve injury most often follows a lack of timely diagnosis and management as opposed to the complication itself; 20 intraoperative and postoperative identification are paramount.
The majority of verdicts were found to be in favour of the defendant orthopaedic surgeon, which is consistent with many studies in both orthopaedics and the medical profession in general (Table 2).5,6,11,12,16 For example, Jena et al. found that 7.4% of physicians across all specialties faced a malpractice claim annually, but only 1.6% made a payment on that claim. 5 Kessler describes the three elements of a successful claim to be: (1) an adverse event must have occurred; (2) the physician must have caused the adverse event; and (3) the physician must have been negligent. 21 Using this framework, an unsuccessful claim likely lacks one of these elements. The literature suggests that a significant number of claims are brought to court without substantial bases. It has even been reported that over 80% of successful claims have no clear evidence of negligence. 21 With reports like these, one might question the motivating factors behind a malpractice lawsuit. Rothstein reported on an interview-based study of 127 families involved in malpractice litigation; the top three reasons for filing a claim were: (1) the plaintiff was advised to sue; (2) the plaintiff needed financial assistance for long-term care; and (3) the plaintiff felt that the physician was dishonest. 22
Out of all alleged complications found in more than five cases, malpositioned hardware and neurological injury had the highest rates of a plaintiff verdict (Table 3). This is perhaps due to the fact that malpositioned hardware is an easily identifiable and often undeniable error with the use of modern diagnostic imaging techniques. Neurological injury, on the other hand, is less objectively apparent but can be permanent and quite devastating; this may help the plaintiff prevail in front of a jury. It has been shown that malpractice claims involving severe injuries, such as permanent impairment (e.g. neurological injury), are 41% more likely to lead to a payment. 14 We found the mean payout for a plaintiff verdict to be higher than the mean payout for a settlement, as expected (Table 2). Although this result was not found to be statistically significant, the effect size was large. With a greater sample size, it is anticipated that this finding would prove to be statistically significant.
This study has several limitations. Reporting to the Westlaw legal database is voluntary and dependent on the reporting requirements set by each individual state. As with any non-random sample, our cohort is prone to selection bias. Since the Westlaw database is designed for use by the legal profession, it might contain more cases of interest to legal professionals or those resulting in high payouts. Additionally, the Westlaw database captures only disputes that result in litigation, but some disputes are resolved outside of the legal system. 23
This study provides a descriptive analysis of hip surgery malpractice litigation in the United States, showcasing trends in recent years. The results highlight the importance of future tort reform initiatives to create a legal system that is just for both the injured patient as well as the conscientious health professional.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.