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Major malpractice insurer releases study showing why orthopedic surgeons get sued

Posted Monday, August 7, 2017 by Tyler Goldberg-Hoss

The Doctors Company promotes itself as the largest physician-owned medical malpractice insurer in the country. Recently, it analyzed nearly 2000 claims from 2007-2014, looking for why patients brought lawsuits against their orthopedic surgeon.

A handy chart goes into greater detail, but results of the study were divided into “most common patient allegations” and “factors contributing to patient injury”.

The most common patient allegation is that the surgeon didn’t perform the surgery correctly (46%). Of course, not all of these allegations resulted from a surgeon committing malpractice; often there are bad outcomes from surgery (or to use the insurer’s language, “the outcome … differed from the patient’s expectations”).

The two biggest factors this insurer found contributing to patient injury were “technical performance” (35%) and “patient factors” (29%). Other categories included “selection and management of therapy”, “communication between patient/family and provider”, and “Patient assessment issues” (all 12%).

The most striking to me is “Patient factors” – the analysis found that the second leading cause of patient injury was the patients themselves – including seeking other providers due to dissatisfaction with care, not following the post operative treatment plan or not coming to follow up appointments.

Certainly, I can understand a patient’s responsibility as a team member in any orthopedic surgery. This obviously includes adhering to rehabilitation plans, coming in for follow up appointments, and the like. What I can’t quite figure out is why a patient should be faulted for seeking out another provider (likely another orthopedic surgeon) when they are dissatisfied with their current one. This is consistent with the focus group work I have done, in which participants regularly ask if the patient sought a second opinion. If the patient did not, he or she was faulted.

Finally, the handy chart includes “Risk Mitigation Strategies” on the bottom; easy to follow instructions for its members on how to attempt to avoid being sued.

For patients, it may be an interesting read, particularly those entertaining the possibility of orthopedic surgery in the near future.

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