Malpractice Litigation in Orthopaedic Surgery: Considerations Regarding Subspecialty and Training Level

Medical malpractice litigation is rising, influenced by various factors, including patients’ expectations and a growing litigation industry1. In their article, Boufadel et al. focus on medical malpractice litigation in orthopaedic surgery in the United States, discuss malpractice trends and risk in different orthopaedic subspecialties, and review preventive strategies and approaches for navigating lawsuits. In orthopaedic surgery, the majority of claims are associated with diagnostic delays or errors and issues pertaining to treatment. Never events, such as wrong-site surgery, retained foreign objects following procedures, and incorrect implant or prosthesis selection, account for only a small proportion of overall claims. Regarding the diagnostic accuracy and management of orthopaedic trauma within emergency departments (EDs), it is critical to recognize the notable global and national variations in ED staffing and in the level of physicians’ experience. In regional hospitals, trauma care may be administered by general surgeons, whereas, in smaller health-care units, initial evaluations are often conducted by allied health professionals, including general practitioners. European studies examining hand and wrist malpractice claims have revealed that most accepted claims in the ED were associated with treatment provided by general surgeons. Furthermore, due to varying levels of experience among on-call residents, there is a substantial incidence of claims filed against residents working in the ED2,3. Although malpractice risk varies by orthopaedic subspecialty, Boufadel et al. highlight a common leading cause of litigation, which is nerve injury. Nerve injury has been described as a very common reason for litigation resulting in successful claims and in high amounts of payments to plaintiffs4,5. Knowledge of surgical anatomy and of procedures associated with a high risk of nerve injury, identification of vulnerable nerves, and intraoperative nerve monitoring could effectively reduce the incidence of these injuries. Another very interesting point raised in malpractice trends in orthopaedic subspecialties is that, in pediatric orthopaedic surgery, limitation periods may be extended until adulthood. Consequently, this subspecialty is subject to increased liability risk due to substantially longer limitation periods6. According to Boufadel et al., plaintiff verdicts are less common than defense verdicts. Nonetheless, plaintiff verdicts and settlements may result in compensation payments reaching several million dollars, with notably higher payouts associated with spine surgery and substantially lower amounts with hand surgery3. These points underscore the importance of implementing prevention strategies, particularly in the fields of tailored education for residents and junior physicians, which, regrettably, was not emphasized in this article; effective and timely diagnosis; precise communication; and thorough documentation. Finally, a notable aspect of this article is its thorough presentation of strategies for addressing legal actions.