Approximately 15% of orthopedic surgeons are named in medical malpractice lawsuits at some point in their career1. A team from Massachusetts General Hospital and Harvard Medical School set out to to more fully understand the trends behind these expensive and damaging forms of litigation, particulary in cases of total joint arthroplasty (TJA).
Cause of Litigation No Longer Infection: Guess What it IS!
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The results of their study, “Medical Malpractice Litigation Trends Following Primary Total Hip and Knee Joint Arthroplasty: An Updated Nationwide Analysis,” was published in the September 16, 2024 edition of The Journal of Arthroplasty.
Co-author Young-Min Kwon, M.D., Ph.D., professor and vice chair of the Department of Orthopaedic Surgery at Massachusetts General Hospital and Harvard Medical School told OTW, “We undertook this work because of the surge in demand and utilization of hip and knee TJA combined with arthroplasty having the highest representation of orthopaedic surgery malpractice suits. It is important for arthroplasty surgeons to understand what may contribute to suboptimal outcomes and patient satisfaction rates and try to mitigate these outcomes.”
“Given the increasing high demand for TJA, the rare postoperative complications may be more ubiquitous than those from other less commonly performed surgeries, resulting in patient dissatisfaction or poor outcomes and potentially a medical malpractice claim.”
The authors used a legal database to find cases between 2018 and 2022 involving primary hip and knee TJA in the U.S. The cases were listed as original rulings or appeals and reviewed for the alleged negligence, damages incurred, demographics, and verdicts. Appeals were further assessed for appellant details, preliminary judgment, and outcomes.
OTW asked Dr. Kwon about the challenges he and team confronted setting up or executing the study. He said, “The biggest challenge probably is that while we used a national legal database, which does not include cases that never made trial or did not reach the verdict in time for this study.”
“It is also challenging to identify, collect, and compare different variables for each case. In contrast to traditional orthopaedic retrospective reviews that use EHRs [electronic health records], legal databases only provide limited and necessary information for the purpose of a trial.”
Working with 59 cases: 33 (56%) total knee arthroplasty (TKA) and 26 (44%) total hip arthroplasty (THA), the authors found:
- TKA cases had a relatively high percentage of pain complaints (24%),
- THA cases tended to cite nerve injuries (31%).
The research team determined that negligence largely stemmed from:
- procedural error (47%),
- postsurgical error (27%), and/or
- failure to inform (14%).
Case outcomes were decided in favor of the defense in 66% of cases.
Overall, 90% of primary verdicts led to appeals and, of those, 71% were initiated by the plaintiff. Interestingly, upon appeal, the initial court rultings were upheld 53% of the time for defendants but a much higher 87% rate for plaintiffs.
Dr. Kwon: “The focus of malpractice has been shifting in a short amount of time and should be reviewed to address emerging litigation trends in TJA, as they will help identify risk points and improve the overall quality of TJA. While majority of trialed malpractice claims have ended in the favor of the defendant (surgeon or institution), these findings will aid arthroplasty surgeon care teams in further improving patient care and outcomes.”
OTW asked Dr. Kwon if the shift from infection to ongoing/worsening pain in TKA means that we have a better handle on infections. Dr. Kwon said, “With increased efforts to identify infections clinically with a low threshold and to hold preoperative discussions about the risks of infection in advance with the patient, the prevalence of malpractice claims relating to infection may have been mitigated.”
“Ongoing/worsening pain may be attributed to patient expectations, as TKA is cited as one of the most successful procedures in orthopaedic surgery. Also, as the mean age of patients undergoing arthroplasty decreases, there is an increasing number of younger patients who are left unsatisfied with their TKA performance in returning to more robust strenuous activities.”
“Awareness of these gaps and areas of improvement is the first step. Arthroplasty surgeons may benefit by reviewing these findings of recent litigation trends as they can be talking points that need to be emphasized to the care team as well as the patient prior to surgery to avoid such situations in their future practice.”
“While this information can only be extracted through a litigation database such as Westlaw, there are inherent limitations. Future work ideally would have a greater sample size to extract and review data from. A future research review may also focus on if there were any litigation trends with the shift from inpatient to outpatient TJA as there is a growing prevalence of outpatient and ambulatory surgical center TJA.”
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This is a fascinating development. In my practice we've seen similar outcomes with the revised protocol. The key differentiator seems to be patient selection criteria. Has anyone else noticed the correlation with BMI thresholds?
Great point. I'd push back slightly on the conclusion, the sample size in the cited study is too small to draw population-level inferences. That said, the directional signal is compelling and worth a larger RCT.
We implemented a similar approach last year. Early results are promising but we're still gathering 12-month follow-up data. Happy to share our protocol if anyone is interested.
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