HAND SURGERY PRACTICE
Medical Malpractice in Hand Surgery Nick D. Pappas, MD, Diane Moat, Donald H. Lee, MD The rise in medical malpractice claims over the past few decades has altered physicians’ practice patterns and has had a considerable financial impact on the medical community as a whole. While numerous studies have analyzed the content and effect of these claims, only a handful of articles have addressed specifically the issue of medical malpractice in hand surgery. This article outlines the available literature on malpractice in hand surgery, offers guidance to hand surgeons on managing medical malpractice claims, and discusses preventative measures they might take to limit such claims from being filed in the future. We conclude that the key measures one can take to protecting oneself legally are knowing and abiding by the standard of care, keeping patients informed and developing good relationships with them, and meticulously documenting. Although some malpractice claims are unavoidable, we believe that one can limit his or her exposure to them by incorporating these measures into their respective practices. (J Hand Surg Am. 2014;39(1):168–170. Copyright © 2014 by the American Society for Surgery of the Hand. All rights reserved.) Key words Hand surgery, medical malpractice.
litigious society, physicians in all areas of medicine are faced with growing concerns over the rise in medical malpractice claims.1,2 A few recently published articles have analyzed these claims and their overall financial impact on the medical community.3,4 However, few articles specifically address the issue of medical malpractice in hand surgery.5 The purposes of this article are to review the available literature on malpractice in hand surgery, offer guidance to hand surgeons on managing medical malpractice claims, and outline preventative measures they might take to limit such claims from being filed in the future.
W
ITH AN INCREASINGLY
FromtheGreenvilleHospitalSystem/SteadmanHawkinsClinicoftheCarolinas,Greenville,SC;andthe OfficeofRiskandInsuranceManagementandVanderbiltOrthopaedicInstitute,VanderbiltUniversity Medical Center, Nashville, TN. Received for publication February 1, 2013; accepted in revised form June 15, 2013. No benefits in any form have been received or will be received related directly or indirectly to the subject of this article. Correspondingauthor: DonaldH.Lee,MD,VanderbiltOrthopaedicInstitute,VanderbiltUniversity Medical Center, 1215 21st Avenue South, Ste. 3200, Nashville, TN 37232; e-mail: [email protected]. 0363-5023/14/3901-0033$36.00/0 http://dx.doi.org/10.1016/j.jhsa.2013.06.021
168 䉬 © ASSH 䉬 Published by Elsevier, Inc. All rights reserved.
THE LITERATURE ON MALPRACTICE IN HAND SURGERY The literature on medical malpractice in hand surgery is sparse, especially from the United States (US). In general, malpractice insurers of major medical institutions in the US are reluctant to divulge detailed information about the nature of settlements and the jury verdicts with which their clients have been involved. One may speculate that such reluctance stems from these insurers’ desire to protect their client’s privacy and prevent malpractice prosecutors from learning the dollar figures involved in these types of cases. As a result, our knowledge regarding the current status of medical malpractice in hand surgery is limited. However, our partners in Europe have been much more forthright in disclosing information related to medical malpractice claims and have produced several recent studies that shed light on current hand surgery litigation. In a 2010 study from Britain, Kahn and Giddins6 analyzed 160 claims of medical negligence pertaining to hand and wrist surgery between 1995 and 2001 as provided by the United Kingdom National Health Society Litigation Authority. They discovered that claims had increased over that time and were most commonly related to surgical errors (56%). The treatment of wrist fractures and carpal tunnel syndrome accounted for the largest percentage of claims, at 48% and 22%, respectively. The most com-
MEDICAL MALPRACTICE IN HAND SURGERY
mon cause of litigation related to carpal tunnel syndrome was median nerve laceration at the time of surgery (78%). Another common cause of litigation was missed injuries in the emergency room; unrecognized carpometacarpal fracture-dislocations of the little and ring fingers were common culprits.7 There were no claims involved complex hand surgical procedures. A study by Atrey et al5 in 2010 reviewed 2,312 litigation claims in the United Kingdom from 2000 to 2006 against all orthopedic surgeons by also querying the United Kingdom National Health Society Litigation Authority database. They performed a subgroup analysis on hand and wrist surgery. In total, 69 cases were related to hand and wrist surgery, with 39 specifically involving laceration of the median nerve during carpal tunnel release. A European study from The Netherlands published in 2010 by Mahdavian Delavary et al8 analyzed all hand and wrist malpractice claims in that country between 1993 and 2007. They collected data on 743 hand and wrist claims that had been handled by the largest malpractice insurer in their country, a corporation named MediRisk, which covers over 90% of the hospitals. In The Netherlands, there is a vast shortage of fellowshiptrained hand surgeons; only 25 such surgeons service an estimated 16 million people. As a result, physicians who practice largely general surgery and are not specifically trained in hand surgery are often called upon to treat basic hand conditions. This study found that general surgeons who occasionally treat hand conditions were the most commonly involved in litigation pertaining to hand surgery. The most common hand injury cited in these litigation claims was wrist fracture. In the lone US-based study on hand surgery litigation, Bastidas et al9 analyzed all malpractice claims from 2001 to 2009 involving finger and hand replantations performed at Bellevue Hospital Medical Center, New York. Of the 23 claims filed, only 1 achieved a small financial settlement. The others were dropped. The majority of claims (56.5%) stemmed from the surgeon’s decision not to replant an amputated digit. Based on the repeat failure of these claims to substantiate any sort of judgment in the favor of the plaintiff, the authors concluded that the legal system supports hand surgeons and institutions that treat complex hand injuries. HANDLING MALPRACTICE CLAIMS Given the increasingly litigious society in which we live, a large percentage of hand surgeons in the US will face a malpractice claim over the course of their careers. A questionnaire study performed by Kessler10 showed
169
FIGURE 1: Key steps one might take in handling a medical malpractice claim.
that nearly 40% of the US membership of the American Society for Surgery of the Hand has been sued at some point for treatment of a hand condition. If you should ever receive notification of a malpractice claim, immediately consult your malpractice carrier and review all aspects of the claim with them in detail (Fig. 1). They will typically provide you with an attorney to assist in the handling of your claim. If you and your attorney are confident that the claim has no merit, you may be successful in getting it dismissed at an early stage.3 A recent study by Studdert et al3 showed that approximately one third of all medical malpractice claims hold no merit. Frequently, the plaintiff struggles to show sufficient evidence of malpractice through medical expert testimony, and dismissals are often granted.11 However, if the case does not get dismissed, a process known as discovery will begin. This process includes reviewing medical records in detail, obtaining expert witnesses, and taking depositions. At any time during this process, the case may still be dismissed or settled. At this point, a trial date will often be set. Cases are commonly settled before going to trial because of the costs and the risk of going to trial for all parties involved.3 In the Kessler10 study, over half of the 300 malpractice cases reviewed were either dropper or dismissed, one third were settled, and less than 10% went to trial. If a trial does occur, the verdict often hinges on your credibility as the defendant, your documentation, and whether the jury believes the plaintiff’s versus your (ie, the defendant’s) expert witness. A strong, wellrespected hand surgeon serving as an expert witness and defending your treatment decisions as part of the standard of care can make the difference between winning and losing your case.12 STAYING OUT OF TROUBLE The first precaution one can take to stay out of trouble with medical malpractice is to avoid blatant mistakes
J Hand Surg Am. 䉬 Vol. , January
170
MEDICAL MALPRACTICE IN HAND SURGERY
with them, and documenting meticulously are some of the key steps one can take to help spend less time in the courtroom and more time in the operating room. REFERENCES
FIGURE 2: Preventative measures to avoid medical malpractice claims.
such as wrong site surgeries (Fig. 2).13 These can happen easily in hand surgery, especially with procedures such as trigger finger releases that may involve multiple digits, and are generally indefensible. Next, be honest with your patients and keep them informed. Patients are inclined to sue for malpractice if they have an outcome that was not properly explained to them in the surgical consent process.14 If an adverse event may happen during a surgery (eg, injury to the median nerve during a carpal tunnel release), you should make patients aware of it, no matter how unlikely it is to occur. Third, try your best to develop a strong relationship with patients and their families. Although it may be difficult with some patients, it is well known that patients who have a good relationship with their physicians are less likely to pursue litigation for a negative outcome. Finally, document meticulously.9 As the adage goes, “The lawyers don’t try you, they try the medical record.” If you did not document it, then it did not happen. Although hand surgeons cannot control the legal climate in the country (or state) in which they practice, they can protect themselves by practicing good and safe medicine, particularly in the treatment of common problems such as carpal tunnel syndrome and wrist fractures, which seem to generate the most litigation. Knowing and abiding by the standard of care, keeping patients informed and developing good relationships
1. Sethi MK, Obremskey WT, Natividad H, Mir HR, Jahangir AA. Incidence and costs of defensive medicine among orthopedic surgeons in the United States: a national survey study. Am J Orthop (Belle Mead NJ). 2012;41(2):69 –73. 2. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609 –2617. 3. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354(19):2024 –2033. 4. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629 – 636. 5. Atrey A, Gupte CM, Corbett SA. Review of successful litigation against English health trusts in the treatment of adults with orthopaedic pathology: clinical governance lessons learned. J Bone Joint Surg Am. 2010;92(18):e36. 6. Khan IH, Giddins G. Analysis of NHSLA claims in hand and wrist surgery. J Hand Surg Eur Vol. 2010;35(1):61– 64. 7. Hodgson PD, Shewring DJ. The “metacarpal cascade lines”: use in the diagnosis of dislocations of the carpometacarpal joints. J Hand Surg Eur Vol. 2007;32(3):277–281. 8. Mahdavian Delavary B, Cremers JE, Ritt MJ. Hand and wrist malpractice claims in The Netherlands: 1993-2008. J Hand Surg Eur Vol. 2010;35(5):381–384. 9. Bastidas N, Cassidy L, Hoffman L, Sharma S. A single-institution experience of hand surgery litigation in a major replantation center. Plast Reconstr Surg. 2011;127(1):284 –292. 10. Kessler FB. Hand surgery and the medical liability issue. J Hand Surg Am. 1993;18(4):557–559. 11. Farber HS, White MJ. A comparison of formal and informal dispute resolution in medical malpractice. J Legal Studies. 1994;23:777– 806. 12. Taragin MI, Willett LR, Wilczek AP, Trout R, Carson JL. The influence of standard of care and severity of injury on the resolution of medical malpractice claims. Ann Intern Med. 1992;117(9):780 – 784. 13. O’Dell DM. Avoiding medical negligence claims: a former plaintiffs’ attorney and physician explains why practicing defensive medicine doesn’t work—and tells you what does. Med Econ. 2011;88(1): 42,49 –50, 52 14. Ahamed S, Haas G. Analysis of lawsuits against general surgeons in Connecticut during the years 1985 to 1990. Conn Med. 1992;56(3): 139 –141.
J Hand Surg Am. 䉬 Vol. , January
Medical Malpractice in Hand Surgery Nick D. Pappas, MD, Diane Moat, Donald H. Lee, MD The rise in medical malpractice claims over the past few decades has altered physicians’ practice patterns and has had a considerable financial impact on the medical community as a whole. While numerous studies have analyzed the content and effect of these claims, only a handful of articles have addressed specifically the issue of medical malpractice in hand surgery. This article outlines the available literature on malpractice in hand surgery, offers guidance to hand surgeons on managing medical malpractice claims, and discusses preventative measures they might take to limit such claims from being filed in the future. We conclude that the key measures one can take to protecting oneself legally are knowing and abiding by the standard of care, keeping patients informed and developing good relationships with them, and meticulously documenting. Although some malpractice claims are unavoidable, we believe that one can limit his or her exposure to them by incorporating these measures into their respective practices. (J Hand Surg Am. 2014;39(1):168–170. Copyright © 2014 by the American Society for Surgery of the Hand. All rights reserved.) Key words Hand surgery, medical malpractice.
litigious society, physicians in all areas of medicine are faced with growing concerns over the rise in medical malpractice claims.1,2 A few recently published articles have analyzed these claims and their overall financial impact on the medical community.3,4 However, few articles specifically address the issue of medical malpractice in hand surgery.5 The purposes of this article are to review the available literature on malpractice in hand surgery, offer guidance to hand surgeons on managing medical malpractice claims, and outline preventative measures they might take to limit such claims from being filed in the future.
W
ITH AN INCREASINGLY
FromtheGreenvilleHospitalSystem/SteadmanHawkinsClinicoftheCarolinas,Greenville,SC;andthe OfficeofRiskandInsuranceManagementandVanderbiltOrthopaedicInstitute,VanderbiltUniversity Medical Center, Nashville, TN. Received for publication February 1, 2013; accepted in revised form June 15, 2013. No benefits in any form have been received or will be received related directly or indirectly to the subject of this article. Correspondingauthor: DonaldH.Lee,MD,VanderbiltOrthopaedicInstitute,VanderbiltUniversity Medical Center, 1215 21st Avenue South, Ste. 3200, Nashville, TN 37232; e-mail: [email protected]. 0363-5023/14/3901-0033$36.00/0 http://dx.doi.org/10.1016/j.jhsa.2013.06.021
168 䉬 © ASSH 䉬 Published by Elsevier, Inc. All rights reserved.
THE LITERATURE ON MALPRACTICE IN HAND SURGERY The literature on medical malpractice in hand surgery is sparse, especially from the United States (US). In general, malpractice insurers of major medical institutions in the US are reluctant to divulge detailed information about the nature of settlements and the jury verdicts with which their clients have been involved. One may speculate that such reluctance stems from these insurers’ desire to protect their client’s privacy and prevent malpractice prosecutors from learning the dollar figures involved in these types of cases. As a result, our knowledge regarding the current status of medical malpractice in hand surgery is limited. However, our partners in Europe have been much more forthright in disclosing information related to medical malpractice claims and have produced several recent studies that shed light on current hand surgery litigation. In a 2010 study from Britain, Kahn and Giddins6 analyzed 160 claims of medical negligence pertaining to hand and wrist surgery between 1995 and 2001 as provided by the United Kingdom National Health Society Litigation Authority. They discovered that claims had increased over that time and were most commonly related to surgical errors (56%). The treatment of wrist fractures and carpal tunnel syndrome accounted for the largest percentage of claims, at 48% and 22%, respectively. The most com-
MEDICAL MALPRACTICE IN HAND SURGERY
mon cause of litigation related to carpal tunnel syndrome was median nerve laceration at the time of surgery (78%). Another common cause of litigation was missed injuries in the emergency room; unrecognized carpometacarpal fracture-dislocations of the little and ring fingers were common culprits.7 There were no claims involved complex hand surgical procedures. A study by Atrey et al5 in 2010 reviewed 2,312 litigation claims in the United Kingdom from 2000 to 2006 against all orthopedic surgeons by also querying the United Kingdom National Health Society Litigation Authority database. They performed a subgroup analysis on hand and wrist surgery. In total, 69 cases were related to hand and wrist surgery, with 39 specifically involving laceration of the median nerve during carpal tunnel release. A European study from The Netherlands published in 2010 by Mahdavian Delavary et al8 analyzed all hand and wrist malpractice claims in that country between 1993 and 2007. They collected data on 743 hand and wrist claims that had been handled by the largest malpractice insurer in their country, a corporation named MediRisk, which covers over 90% of the hospitals. In The Netherlands, there is a vast shortage of fellowshiptrained hand surgeons; only 25 such surgeons service an estimated 16 million people. As a result, physicians who practice largely general surgery and are not specifically trained in hand surgery are often called upon to treat basic hand conditions. This study found that general surgeons who occasionally treat hand conditions were the most commonly involved in litigation pertaining to hand surgery. The most common hand injury cited in these litigation claims was wrist fracture. In the lone US-based study on hand surgery litigation, Bastidas et al9 analyzed all malpractice claims from 2001 to 2009 involving finger and hand replantations performed at Bellevue Hospital Medical Center, New York. Of the 23 claims filed, only 1 achieved a small financial settlement. The others were dropped. The majority of claims (56.5%) stemmed from the surgeon’s decision not to replant an amputated digit. Based on the repeat failure of these claims to substantiate any sort of judgment in the favor of the plaintiff, the authors concluded that the legal system supports hand surgeons and institutions that treat complex hand injuries. HANDLING MALPRACTICE CLAIMS Given the increasingly litigious society in which we live, a large percentage of hand surgeons in the US will face a malpractice claim over the course of their careers. A questionnaire study performed by Kessler10 showed
169
FIGURE 1: Key steps one might take in handling a medical malpractice claim.
that nearly 40% of the US membership of the American Society for Surgery of the Hand has been sued at some point for treatment of a hand condition. If you should ever receive notification of a malpractice claim, immediately consult your malpractice carrier and review all aspects of the claim with them in detail (Fig. 1). They will typically provide you with an attorney to assist in the handling of your claim. If you and your attorney are confident that the claim has no merit, you may be successful in getting it dismissed at an early stage.3 A recent study by Studdert et al3 showed that approximately one third of all medical malpractice claims hold no merit. Frequently, the plaintiff struggles to show sufficient evidence of malpractice through medical expert testimony, and dismissals are often granted.11 However, if the case does not get dismissed, a process known as discovery will begin. This process includes reviewing medical records in detail, obtaining expert witnesses, and taking depositions. At any time during this process, the case may still be dismissed or settled. At this point, a trial date will often be set. Cases are commonly settled before going to trial because of the costs and the risk of going to trial for all parties involved.3 In the Kessler10 study, over half of the 300 malpractice cases reviewed were either dropper or dismissed, one third were settled, and less than 10% went to trial. If a trial does occur, the verdict often hinges on your credibility as the defendant, your documentation, and whether the jury believes the plaintiff’s versus your (ie, the defendant’s) expert witness. A strong, wellrespected hand surgeon serving as an expert witness and defending your treatment decisions as part of the standard of care can make the difference between winning and losing your case.12 STAYING OUT OF TROUBLE The first precaution one can take to stay out of trouble with medical malpractice is to avoid blatant mistakes
J Hand Surg Am. 䉬 Vol. , January
170
MEDICAL MALPRACTICE IN HAND SURGERY
with them, and documenting meticulously are some of the key steps one can take to help spend less time in the courtroom and more time in the operating room. REFERENCES
FIGURE 2: Preventative measures to avoid medical malpractice claims.
such as wrong site surgeries (Fig. 2).13 These can happen easily in hand surgery, especially with procedures such as trigger finger releases that may involve multiple digits, and are generally indefensible. Next, be honest with your patients and keep them informed. Patients are inclined to sue for malpractice if they have an outcome that was not properly explained to them in the surgical consent process.14 If an adverse event may happen during a surgery (eg, injury to the median nerve during a carpal tunnel release), you should make patients aware of it, no matter how unlikely it is to occur. Third, try your best to develop a strong relationship with patients and their families. Although it may be difficult with some patients, it is well known that patients who have a good relationship with their physicians are less likely to pursue litigation for a negative outcome. Finally, document meticulously.9 As the adage goes, “The lawyers don’t try you, they try the medical record.” If you did not document it, then it did not happen. Although hand surgeons cannot control the legal climate in the country (or state) in which they practice, they can protect themselves by practicing good and safe medicine, particularly in the treatment of common problems such as carpal tunnel syndrome and wrist fractures, which seem to generate the most litigation. Knowing and abiding by the standard of care, keeping patients informed and developing good relationships
1. Sethi MK, Obremskey WT, Natividad H, Mir HR, Jahangir AA. Incidence and costs of defensive medicine among orthopedic surgeons in the United States: a national survey study. Am J Orthop (Belle Mead NJ). 2012;41(2):69 –73. 2. Studdert DM, Mello MM, Sage WM, et al. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005;293(21):2609 –2617. 3. Studdert DM, Mello MM, Gawande AA, et al. Claims, errors, and compensation payments in medical malpractice litigation. N Engl J Med. 2006;354(19):2024 –2033. 4. Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med. 2011;365(7):629 – 636. 5. Atrey A, Gupte CM, Corbett SA. Review of successful litigation against English health trusts in the treatment of adults with orthopaedic pathology: clinical governance lessons learned. J Bone Joint Surg Am. 2010;92(18):e36. 6. Khan IH, Giddins G. Analysis of NHSLA claims in hand and wrist surgery. J Hand Surg Eur Vol. 2010;35(1):61– 64. 7. Hodgson PD, Shewring DJ. The “metacarpal cascade lines”: use in the diagnosis of dislocations of the carpometacarpal joints. J Hand Surg Eur Vol. 2007;32(3):277–281. 8. Mahdavian Delavary B, Cremers JE, Ritt MJ. Hand and wrist malpractice claims in The Netherlands: 1993-2008. J Hand Surg Eur Vol. 2010;35(5):381–384. 9. Bastidas N, Cassidy L, Hoffman L, Sharma S. A single-institution experience of hand surgery litigation in a major replantation center. Plast Reconstr Surg. 2011;127(1):284 –292. 10. Kessler FB. Hand surgery and the medical liability issue. J Hand Surg Am. 1993;18(4):557–559. 11. Farber HS, White MJ. A comparison of formal and informal dispute resolution in medical malpractice. J Legal Studies. 1994;23:777– 806. 12. Taragin MI, Willett LR, Wilczek AP, Trout R, Carson JL. The influence of standard of care and severity of injury on the resolution of medical malpractice claims. Ann Intern Med. 1992;117(9):780 – 784. 13. O’Dell DM. Avoiding medical negligence claims: a former plaintiffs’ attorney and physician explains why practicing defensive medicine doesn’t work—and tells you what does. Med Econ. 2011;88(1): 42,49 –50, 52 14. Ahamed S, Haas G. Analysis of lawsuits against general surgeons in Connecticut during the years 1985 to 1990. Conn Med. 1992;56(3): 139 –141.
J Hand Surg Am. 䉬 Vol. , January
