Malpractice litigation in elective lumbar spinal fusion: a comprehensive review of reported legal claims in the U.S. in the past 50 years

BACKGROUND CONTEXTIn the U.S., medical malpractice litigation is associated with significant financial costs and often leads to the practice of defensive medicine. Among medical subspecialities, spine surgery is disproportionately impacted by malpractice claims.PURPOSETo provide a comprehensive assessment of reported malpractice litigation claims involving elective lumbar spinal fusion (LSF) surgery during the modern era of spine surgery instrumentation in the U.S., to identify factors associated with verdict outcomes, and to compare malpractice claims characteristics between different approaches for LSF.STUDY DESIGN/SETTINGA retrospective review.PATIENT SAMPLEPatients undergoing elective lumbar spinal fusion surgery.OUTCOME MEASURESThe primary outcome measure was verdict outcome (defendant vs. plaintiff verdict). Secondary outcome measures included alleged malpractice, injury/damage claimed, and award payouts.METHODSThe Westlaw legal database (Thomson Reuters, New York, NY, USA) was queried for verdict and settlement reports pertaining to elective LSF cases from 1970 to 2021. Data were collected regarding patient demographics, surgeon specialty, fellowship training, state/region, procedure, institutional setting (academic vs. community hospital), alleged malpractice, injury sustained, case outcomes, and monetary award.RESULTSA total of 310 cases were identified, yielding 67% (n=181) defendant and 24% (n=65) plaintiff verdicts, with 9% (n=26) settlements. Neurosurgeons and orthopedic spine surgeons were equally named as the defendant (45% vs. 51% respectively, p=0.59). When adjusted for inflation, the median final award for plaintiff verdicts was $1,241,286 (95% CI: $884,850–$2,311,706) while the median settlement award was $925,000 (95% CI: $574,800–$1,787,130), with no stastistically significant differences between verdict and reported settlement payouts (p=0.49). The Northeast region displayed significantly higher award payouts compared to other U.S. regions (p=0.02). There were no associations in awards outcomes when comparing alleged malpractice, alleged injuries/damages, institutional setting, surgical procedures, and surgeon specialty or fellowship training. The most common claims were intraoperative error (28%, n=107) followed by failure to obtain informed consent (24%, n=94). In the analyzed cohort, the most common injuries leading to litigation were refractory pain and suffering (37%, n=149) followed by permanent neurological deficits (26%, n=106). There were no differences in alleged malpractice or injury sustained between cases in which the outcome was favorable to defendant versus plaintiff. Anterior lumbar interbody fusion (ALIF) cases were 2.75 times more likely to be cited for excessive or inappropriate surgery (OR: 2.75 [95% CI: 1.14, 6.86], p=0.02) when compared to posterior surgical approaches.CONCLUSIONThe results of our analysis of reported claims suggest that medical malpractice litigation involving elective LSF is associated with jury verdicts over $1 million per case, with the most common alleged malpractice being intraoperative error and failure to obtain informed consent. Surgeon specialty, fellowship training, procedure type, and institution type were not associated with greater litigation risks; however, ALIF surgery had a significantly higher risk of involving claims of excessive or inappropriate surgery compared to posterior approaches for lumbar fusion. In addition, claims were significantly higher in the Northeast compared to other U.S. regions. Efforts to improve patient education through shared-decision making and proactive strategies to avoid, detect, and mitigate intra-operative procedural errors may decrease the risk of litigation in elective LSF.     

Bariatric-related medical malpractice experience: survey results among ASMBS members

BackgroundThe medicolegal aspects of bariatric surgery are very difficult to analyze scientifically because there is no central, searchable database of closed case claims and little incentive for malpractice insurers to divulge data. Examining medicolegal data may provide insight into the financial and psychological burden on physicians. Detailed data also may be used to improve patient safety and determine common causes of negligence.MethodsAll U.S.-based members of the American Society of Metabolic and Bariatric Surgeons were asked to complete a survey regarding their bariatric-related medical malpractice experience.ResultsOf the 1672 eligible members that received the survey, 330 responded (19.7%). Mean years in practice was 15.3±9. Mean annual cost of malpractice insurance was $59,200±$52,000 (N = 197). The respondent surgeons experienced 1.5±3.2 lawsuits on average over the course of their practice. Of the 330 respondents, 144 (48%) did not report a bariatric-related lawsuit filed against them. Of the 464 lawsuits reported by 156 surgeons, 126 were settled out of court (27%), 249 were dropped (54%), and 54 (18%) went to trial. Seventy-two percent of cases that went to trial were found to be in favor of the defense. The mean lifetime amount paid for suits was $250,000±$660,000. The probability of a bariatric surgeon experiencing a lawsuit was independently associated with the years in practice (P = .03) and number of total cases the surgeon has performed (P = .01). The annual cost of malpractice insurance was independently predicted by the amount paid in previous claims (P = .01).ConclusionsThe probability of a medical malpractice lawsuit correlates positively to the number of procedures performed and the number of years the surgeon has been in practice.     

Orthopedic medical malpractice: an attorney's perspective

Orthopedic surgeons are trained to manage problems involving the musculoskeletal system. It would be helpful to identify certain procedures, anatomic areas, or issues related to the physician-patient relationship that could potentially lead to a malpractice lawsuit. Once the problems are identified, steps toward continuing education and physician awareness could be initiated. In this study, we performed a randomized nationwide survey of medical malpractice attorneys to evoke their opinion on these issues. We found that the lumbar spine was the most common anatomic area involved in orthopedic medical malpractice cases, and a physician appearing rushed and uninterested is most likely to be the subject of a lawsuit where a poor physician-patient relationship was a contributing factor. Educational and professional programs are needed to increase the awareness and knowledge of orthopedic malpractice risks, and also to identify potentially preventable problems leading to malpractice litigation.     

Major common bile duct injury and risk of litigation: a surgeon's perspective

Risk for a lawsuit for medical malpractice has unfortunately become part of physicians' daily professional activities, with a blowout in indemnity insurance premiums, especially in high-risk medical specialties. Common bile duct injury following laparoscopic cholecystectomy is a well-recognized and feared complication for surgeons because of its associated morbidity, and it also ranks among the leading sources of medical malpractice claims against surgeons in the world. The purpose of this article is to raise awareness within the medical community and in particular among specialist surgeons on the important threat they could be facing in terms of litigation in the event of an adverse surgical outcome following such a commonly performed procedure. There is a real need for open debate on this concerning topic, as the fear of lawsuits and exorbitant malpractice premiums are pushing a substantial number of medical professionals to practice defensive medicine, reflected by the avoidance of performing certain procedures or treating high-risk patients perceived to have higher litigation rates, or simply walking away from their current practices, creating a chronic shortage of specialized doctors in certain surgical areas.     

Symptoms of Burnout Among Surgeons Are Correlated with a Higher Incidence of Perceived Medical Errors

Background

Nearly 44% of practicing physicians in the USA report symptoms of burnout. Psychological distress and loss of joy in medicine are associated with malpractice lawsuits and attrition from medical practice and may correlate with the rate of perceived medical errors.

Questions/Purposes

We sought to answer two questions: (1) What physician factors are associated with the number of perceived medical errors among practicing surgeons in the prior 3 months? (2) What characteristics are associated with symptoms of burnout among practicing surgeons?

Methods

We created a cross-sectional survey and invited members of the Science of Variation Group to respond between December 2018 and January 2019. Participating surgeons completed the Abbreviated Maslach Burnout Inventory, the two-item Patient Health Questionnaire (PHQ-2), and information about practice characteristics and demographics. We created a negative binomial and a multivariable linear regression model to seek factors independently associated with the number of perceived medical errors and symptoms of burnout.

Results

A greater level of emotional exhaustion was associated with a greater number of perceived medical errors, while practice location in Europe was associated with fewer perceived errors. A higher PHQ-2 score was independently associated with symptoms of burnout.

Conclusion

It is possible that symptoms of burnout cause surgeons to be more likely to perceive an imperfection as an error or that burnout distracts surgeons, contributing to a greater likelihood of a verifiable error. Additional studies are merited to investigate a potential causal relationship between symptoms of burnout and medical errors.

     

Sexual dysfunction damages: A legal database review

IntroductionProcedural specialties are at higher risk for malpractice claims than non-procedural specialties. Previous studies have examined common damages and malpractice lawsuits resulting from specific procedures. Our goal was to analyze urological interventions that led to sexual dysfunction (SD) claims.MethodsThe Casetext legal research platform was queried using search terms for medical malpractice and common men’s health procedures between 1993 and 2020. In total, 236 cases were found, and 21 cases met the inclusion criteria: malpractice cases against a urologist or urology group, clearly stated legal outcome, and allegation of sexual dysfunction from an intervention that directly caused damages.ResultsA total of 42 damages were cited in 21 lawsuits. The top three damages claimed were erectile dysfunction (ED) (14/42, 33.3%), genital pain syndrome (7/42, 16.7%), and urinary incontinence (5/42, 11.9%). The most commonly cited treatments were urinary catheter placement or removal (3/21, 14.3%), robotic-assisted laparoscopic radical prostatectomy (RALP) (3/21, 14.3%), circumcision (3/21, 14.3%), and penile implant (3/21, 14.3%). In 19 of 21 suits (90.4%), the outcome favored the defendant. Two cases favored the plaintiff: penile implant (failure to prove the patient was permanently, organically impotent prior to the procedure; missed urethral injury at time of surgery, $300 000) and vasectomy (damage to vasculature resulting in loss of testicle, $300 000).ConclusionsMost suspected malpractice cases resulting in SD favored the defendant urologist. Interestingly, urinary catheter placement is as likely to result in litigation as other operative interventions, such as RALP, inflatable penile prosthesis, and circumcision. It is possible that thorough preoperative counselling and increased responsiveness to patients’ postoperative concerns may have avoided litigation in several cases.     

The defense counsel's perspective

In all likelihood, most orthopedic surgeons today will be the subject of a lawsuit related to the care and treatment of a patient. This article is designed to provide physicians with pertinent material to help prepare for what seems to have become the inevitable--the medical malpractice lawsuit. There are a number of things that can be done to minimize the chance that a surgeon will be sued. Keeping informed about recent developments in orthopaedics, developing a good relationship with patients, and maintaining good documentation are just a few of the ways to help reduce the chances of being named in a potential lawsuit. Additionally, we offer physicians who have been sued assistance in getting through the litigation process, which at times can be daunting. Logical suggestions, such as not discussing a case with anyone other than a spouse and/or an attorney and not altering the medical records and larger concepts, including the importance of developing a relationship with an attorney, understanding the attorney-client privilege, and adequately preparing for the deposition and trial are discussed at length. Although it is not possible to be completely prepared for the day one gets sued, this article should provide insight and information necessary to enable surgeons to face each element of the lawsuit with some knowledge and control.     

Reported Litigation Associated With Primary Hip and Knee Arthroplasty

Background

Greater than 75% of arthroplasty surgeons report having been the subject of a malpractice lawsuit. Despite this, few studies have analyzed the causes of litigation following total joint arthroplasty in the United States.

Commentary: Litigation risk in congenital cardiac surgery

The risk of malpractice litigation is substantial for congenital cardiac surgeons. It is important for providers to be equipped with strategies to minimize this risk without compromising patient care. Below, we provide a commentary on a recent article from the Journal of Cardiac Surgery discussing litigation risk in this field. To minimize liability and provide optimal care, it is critical that congenital cardiac surgeons focus on both tangible objectives, such as decreasing procedural errors, and less tangible objectives, such as improving surgeon empathy and emotional intelligence.     

Apologies and Medical Error

One way in which physicians can respond to a medical error is to apologize. Apologies—statements that acknowledge an error and its consequences, take responsibility, and communicate regret for having caused harm—can decrease blame, decrease anger, increase trust, and improve relationships. Importantly, apologies also have the potential to decrease the risk of a medical malpractice lawsuit and can help settle claims by patients. Patients indicate they want and expect explanations and apologies after medical errors and physicians indicate they want to apologize. However, in practice, physicians tend to provide minimal information to patients after medical errors and infrequently offer complete apologies. Although fears about potential litigation are the most commonly cited barrier to apologizing after medical error, the link between litigation risk and the practice of disclosure and apology is tenuous. Other barriers might include the culture of medicine and the inherent psychological difficulties in facing one’s mistakes and apologizing for them. Despite these barriers, incorporating apology into conversations between physicians and patients can address the needs of both parties and can play a role in the effective resolution of disputes related to medical error. The author certifies that she has no commercial associations (eg, consultancies, stock ownership, equity interest, patent/licensing arrangements, etc) that might pose a conflict of interest in connection with the submitted article.     

Treatment of adult deformity surgery by orthopedic and neurological surgeons: trends in treatment,techniques, and costs by specialty

BACKGROUND CONTEXTSurgery to correct adult spinal deformity (ASD) is performed by both neurological surgeons and orthopedic surgeons. Despite well-documented high costs and complication rates following ASD surgery, there is a dearth of research investigating trends in treatment according to surgeon subspeciality.PURPOSEThe purpose of this investigation was to perform an analysis of surgical trends, costs and complications of ASD operations by physician specialty using a large, nationwide sample.STUDY DESIGN/SETTINGRetrospective cohort study using an administrative claims database.PATIENT SAMPLEA total of 12,929 patients were identified with ASD that underwent deformity surgery performed by neurological or orthopedic surgeons.OUTCOME MEASURESThe primary outcome was surgical case volume by surgeon specialty. Secondary outcomes included costs, medical complications, surgical complications, and reoperation rates (30-day, 1-year, 5-year, and total).METHODSThe PearlDiver Mariner database was queried to identify patients who underwent ASD correction from 2010 to 2019. The cohort was stratified to identify patients who were treated by either orthopedic or neurological surgeons. Surgical volume, baseline characteristics, and surgical techniques were examined between cohorts. Multivariable logistic regression was employed to assess the cost, rate of reoperation and complication according to each subspecialty while controlling for number of levels fused, rate of pelvic fixation, age, gender, region and Charlson Comorbidity Index (CCI). Alpha was set to 0.05 and a Bonferroni correction for multiple comparisons was utilized to set the significance threshold at p ≤.000521.RESULTSA total of 12,929 ASD patients underwent deformity surgery performed by neurological or orthopedic surgeons. Orthopedic surgeons performed most deformity procedures accounting for 64.57% (8,866/12,929) of all ASD operations, while the proportion treated by neurological surgeons increased 44.2% over the decade (2010: 24.39% vs 2019: 35.16%; p<.0005). Neurological surgeons more frequently operated on older patients (60.52 vs 55.18 years, p<.0005) with more medical comorbidities (CCI scores: 2.01 vs 1.47, p<.0005). Neurological surgeons also performed higher rates of arthrodesis between one and six levels (OR: 1.86, p<.0005), three column osteotomies (OR: 1.35, p<.0005) and navigated or robotic procedures (OR: 3.30, p<.0005). Procedures performed by orthopedic surgeons had significantly lower average costs as compared to neurological surgeons (orthopedic surgeons: $17,971.66 vs neurological surgeons: $22,322.64, p=.253). Adjusted logistic regression controlling for number of levels fused, pelvic fixation, age, sex, region, and comorbidities revealed that patients within neurosurgical care had similar odds of complications to orthopaedic surgery.CONCLUSIONSThis investigation of over 12,000 ASD patients demonstrates orthopedic surgeons continue to perform the majority of ASD correction surgery, although neurological surgeons are performing an increasingly larger percentage over time with a 44% increase in the proportion of surgeries performed in the decade. In this cohort, neurological surgeons more frequently operated on older and more comorbid patients, utilizing shorter-segment fixation with greater use of navigation and robotic assistance.     

Professional Liability in Orthopaedics and Traumatology in Italy

Background

Interest in medical errors has increased during the last few years owing to the number of medical malpractice claims. Reasons for the increasing number of claims may be related to patients’ higher expectations, iatrogenic injury, and the growth of the legal services industry. Claims analysis provides helpful information in specialties in which a higher number of errors occur, highlighting areas where orthopaedic care might be improved.

Questions/purposes

We determined: (1) the number of claims involving orthopaedics and traumatology in Rome; (2) the risk of litigation in elective and trauma surgery; (3) the most common surgical procedures involved in claims and indemnity payments; (4) the time between the adverse medical event and the judgment date; and (5) issues related to informed consent.

Methods

We analyzed 1925 malpractice judgments decided in the Civil Court of Rome between 2004 and 2010.

Results

In total, 243 orthopaedics claims were filed, and in 75% of these cases surgeons were found liable; 149 (61%) of these resulted from elective surgery. Surgical teams were sued in 30 claims and found liable in 22. The total indemnity payment ordered was more than €12,350,000 (USD 16,190,000). THA and spinal surgery were the most common surgical procedures involved. Inadequate informed consent was reported in 5.3% of cases.

Conclusions

Our study shows that careful medical examination, accurate documentation in medical records, and adequate informed consent might reduce the number of claims. We suggest monitoring of court judgments would be useful to develop prevention strategies to reduce claims.     

A study of attributable variables impacting orthopedic trauma surgical training

Purpose: In medical colleges, resident training programs must provide adequate surgical experiences, making them qualified at the end of residency program. It is generally believed that it would take more time for a surgical resident to perform surgical procedures than a board-certified surgeon. There is no current benchmark with regards to operative time and surgical cases involving orthopedic surgery residents. In this study, we focused on two key aspects of surgical training variables, namely, surgical duration & C-arm shoots when the procedure is done by a faculty surgeon in comparison to done by an orthopedic resident under supervision of faculty surgeon. Methods: It is an observational prospective study, we observed patients undergoing 1 of 5 common orthopedic trauma operations in a community teaching hospital. We recorded two variables, ‘skin to skin’ surgical duration & number of image intensifier television/C-arm shoots of faculty surgeons and orthopedic resident (postgraduate-3yr) under supervision of faculty surgeon. We calculated mean dif ference of two variables with or without resident & determined statistical significance, we also compared functional outcome at final follow-up. Results: The total number of procedure observed was 402. On observing summarized results of all surgical procedures, faculty surgeons took on an average 33 min lesser (p < 0.05) & on an average 37 lesser number of shoots (p < 0.05) than resident surgeons. The difference in surgical duration tended to increase with the greater complexity of the surgical dissection. The difference in number of C-arm shoots tended to increase with the increase in surgical duration in closed procedures. In all the five procedures there was no significant difference (p > 0.05) in functional outcome of cases performed by faulty surgeon and resident. Conclusion: Little data has been previously published regarding the impact of teaching orthopedic resident in operating room. We demonstrate that resident participation increases the procedure time for commonly performed orthopedic procedures and also the number of C-arm shoots, hence there is a need for technical training facilities outside the operating room such as in cadaveric labs, saw bone labs & virtual surgery simulation. Also the preoperative plan should be thoroughly discussed by faculty surgeon with residents.     

Malpractice awareness among surgeons at a teaching hospital in Pakistan

Background

The duty of a doctor to take care presumes the person who offers medical advice and treatment to unequivocally possess the skills and knowledge to do so. However, a sense of responsibility cannot be guaranteed in the absence of accountability, which in turn requires a comprehensive medical law system to be in place. Such a system is almost non-existent in Pakistan. Keeping the above in mind, we designed this study to assess the knowledge, attitudes and practices of surgeons regarding malpractice at a tertiary care center in Pakistan.

Methods

This was an observational, cross-sectional, questionnaire-based study conducted during a three month period from 31st March, 2012 to 30th June, 2012 at Civil Hospital, Karachi. Surgeons who were available during the period of our study and had been working in the hospital for at least 6 months were included. Self-administered questionnaires were distributed after seeking informed, written consent. The specialties included were general surgery, cardiothoracic surgery, neurosurgery, ophthalmology, otolaryngology, plastic surgery, pediatric surgery, orthopedic surgery, oral and maxillofacial surgery and gynecology and obstetrics. The study questionnaire comprised of four sections. The first section was concerned with the demographics of the surgeons. The second section analyzed the knowledge of the respondents regarding professional negligence and malpractice. The third section assessed the attitudes surgeons with regard to malpractice. The last section dealt with the general and specific practices and experiences of surgeons regarding malpractice.

Results

Of the 319 surgeons interviewed, 68.7% were oblivious of the complete definition of malpractice. Leaving foreign objects inside the patient (79.6%) was the most commonly agreed upon form of malpractice, whereas failure to break news in entirety (43.9%) was most frequently disagreed. In the event of a medical error, majority (67.7%) were ready to disclose their error to the patient. The most common perceived reason for not disclosing the error was threat of a claim or assault (90.9%). Majority (68.3%) believed that malpractice had a negative effect on reputation. Only 13(4.1%) had received at least one legal claim for damages. Only about three-fourths (75.5%) had the habit of frequently obtaining informed consent from the patients. 83(26.0%) expressed reluctance in accepting a case that was deemed to be difficult. Financial gains and liabilities were responsible for biased approach in 8.5% and 12.2% of the respondents respectively.

Conclusion

There is a dire need of programs aimed at increasing awareness among practicing surgeons in our setup. Proactive measures are required for the formulation of an efficient system of litigation. Physician accountability will not only arouse a greater sense of responsibility in them, but will also augment the confidence placed by patients on the healthcare system.     

First report from the American Society of Metabolic and Bariatric Surgery closed-claims registry: prevalence,causes, and lessons learned from bariatric surgery medical malpractice claims

BackgroundBariatric surgery has demonstrated sustained improvements in quality. Malpractice closed claims have been offered as a means of assessing quality. Few studies have investigated malpractice closed claims and opportunities for improvement in bariatric surgery.ObjectivesTo examine the prevalence and causes of malpractice claims with examination of prospects for quality improvement.SettingUniversity hospital, United States; private practice.MethodsFour national malpractice insurers participated in the closed-claims registry. Data regarding patients, staff, procedures, and hospital status were gathered from closed-claims files. Following data collection, a clinical summary of each closed claim was collected and later assessed by an expert panel on the basis of the following: contributing diagnosis and treatment events; whether complications were potentially preventable by the surgeon; the role of language, fatigue, distraction, workload, or teaching hospital/trainee supervision; communication concerns; and final care determination.ResultsA total of 175 closed claims were collected from index bariatric surgeries within the period from 2006–2014. Of these, 75.9% of surgeons were board certified and 43.3% of the hospitals were accredited for bariatric surgery. Most clinical complications after bariatric surgery that led to malpractice lawsuits were mortality (35.1%) and leaks (17.5%). While they were not the common cause for malpractice suits, bleeding (5.3%), retained foreign body (5.3%), and vascular injury (4.4%) occurred at higher rates than national averages.ConclusionPrevalence of malpractice claims regarding bariatric surgery is low. Failure to diagnose, delay in treatment, postoperative care, and communication domain responses indicate future opportunities for improvement.     

The Medical Malpractice Risk Associated with Bariatric Surgery

Background: Bariatric surgery has been classified as high risk by the medical malpractice industry, but it is unclear what data support this classification. When a small group of physicians is separated from their peers and asked to support their malpractice claims, their premiums will often rise unfairly in relation to the outcome of the claims. This report outlines the results of a survey sent to the members of the American Society for Bariatric Surgery (ASBS) asking for information on malpractice claims. Methods: Surveys were mailed to the 285 ASBS members requesting which bariatric operations were performed, how many procedures were completed each year, details of any suits filed against the member including final outcome, and information on whether the members also performed gastric surgery for ulcer disease. Results: Surveys were returned by 165 members (58%) from surgeons in 33 states and Washington, D.C. Malpractice claims had been made after 107 bariatric procedures and three ulcer procedures with the risk of a suit being filed for a bariatric procedure being approximately 1.6/1,000 cases. The average monetary award was $88,667. Of the suits that resulted in a jury trial, 14% agreed with the plaintiff. Over half the cases that had been resolved were either dropped or dismissed before trial. Conclusions: The incidence of suit being brought against ASBS members performing bariatric procedures is low. Once filed, most cases do not reach a jury trial. Settlements are usually under $100,000. These data suggest that this group of bariatric surgeons do not represent a disproportionately large risk pool for medical malpractice insurance companies.     

Lawsuits against plastic surgeons: Does locale affect incidence of claims?

BACKGROUND:

Physicians continue to practice in a very litigious environment. Some physicians try to mitigate their exposure to lawsuits by avoiding geographical locations known for their high incidence of medical malpractice claims. Not only are certain areas of the United States known to have a higher incidence of litigation, but it is also assumed that certain areas of the hospital incur a greater liability. There seems to be a medicolegal dogma suggesting a higher percentage of malpractice claims coming from patients seen in the emergency room (ER), as well as higher settlements for ER claims.

OBJECTIVE:

To determine if there is any validity to the dogma that a higher percentage of malpractice claims arise from the ER.

METHODS:

An analysis of common plastic surgery consults that result in malpractice claims was performed. The location where the basis for the lawsuit arose – the ER, office (clinic) or the operating room (OR) – was evaluated. The value of the indemnity paid and whether its value increased or decreased based on the location of the misadventure was evaluated.

RESULTS:

According to the data, which represented 60% of American physicians, there was a larger absolute number of malpractice claims arising from the OR, not the ER. However, the highest average indemnity was paid for cases involving amputations when the misadventure originated in the ER.

CONCLUSIONS:

The dogma that a greater percentage of lawsuits come from incidents arising in the ER is not supported. However, depending on the patient’s injury and diagnosis, a lawsuit from the ER can be more costly than one from the OR.     

Surgeons' tone of voice: a clue to malpractice history

BACKGROUND: Interpersonal aspects of care, such as the communication behaviors of physicians, are often cited as central to patients' decisions to initiate malpractice litigation. Relatively little is known, however, about the impact of the communication behaviors of surgeons. In the current study, we investigated the relationship between judgments of surgeons' voice tone and their malpractice claims history. METHODS: We examined the relationship between surgeons' voice tone during routine office visits and their history of malpractice claims. Surgeons were audiotaped while speaking to their patients during office visits, and very brief samples of the conversations were rated by coders blind to surgeons' claims status. Two 10-second clips were extracted for each surgeon from the first and last minute of their interactions with 2 different patients. Several variables were rated that assessed warmth, hostility, dominance, and anxiety from 10-second voice clips with content and 10-second voice clips with just voice tone. RESULTS: Controlling for content, ratings of higher dominance and lower concern/anxiety in their voice tones significantly identified surgeons with previous claims compared with those who had no claims (odds ratio [OR] 2.74, 95% confidence interval [CI] 1.16 to 6.43 for dominance; OR 0.46, 95% CI 0.21 to 1.01 for concern/anxiety). CONCLUSIONS: Surgeons' tone of voice in routine visits is associated with malpractice claims history. This is the first study to show clear associations between communication and malpractice in surgeons. Specific types of affect associated with claims can be judged from brief audio clips, suggesting that this method might be useful in training surgeons.