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Communication Issues Can Lead to Malpractice Claims


A recent study looked at the effect miscommunication had on malpractice claims. The results show the value in being clear and concise with patients.

In almost half of the medical malpractice claims against orthopedists, patients allege improper performance of surgery. However, this claim is made most often because the outcome differs from the patient’s expectation -not because of substandard care. The majority of these claims are related to known risks that were disclosed to the patient prior to the procedure, underscoring the importance of effective informed consent conversations that help patients fully understand the risks of the procedures they are undergoing.

This was one of the key findings in a recent analysis of 1,895 claims against more than 2,100 orthopedists by The Doctors Company, a physician-owned medical malpractice insurer. The analysis examined claims that closed between 2007 and 2014 to give orthopedists a better understanding of what motivates a patient to pursue a claim. It also presents a broader overview of the system failures and processes that result in patient harm.

What Patients Allege in Claims
The other top patient allegations in these claims were improper management of the surgical patient (16 percent) and diagnosis-related issues, such as failure or delay in diagnosis or wrong diagnosis (13 percent). The procedures commonly involved in the top allegations included total knee replacement, total hip replacement, knee arthroscopy, vertebroplasty, and rotator cuff repair. Claims alleging improper management of the surgical patient involved clinical decisions and care provided postoperatively that resulted in infections and malunion or nonunion of bones. This led to delayed recovery and need for surgical repair.

Diagnosis-related claims involved issues like compartment syndrome, postoperative infections, and dislocations. One case alleged delay in diagnosis of compartment syndrome in a child with a fractured humerus resulting in loss of function from the elbow down. The surgeon had documented that the child had no palpable pulse but left the cast on for 24 hours.

Factors Contributing to Patient Injury
Expert physician reviewers examined the claims to look beyond what patients alleged and determined the specific factors that led to patient injury. The main takeaway: In nearly a third of the cases where patients alleged improper performance of surgery, patients were not in compliance with the treatment plan. Patient factors contributed to injury in 29 percent of cases -the second largest contributing factor in the study.

Patient behaviors affected the outcome of care when the patient did not follow the treatment plan or missed scheduled appointments. In one case, a patient with a history of several spinal surgeries had Cotrel-Dubousset instrumentation implanted. Several weeks post-op, the CT scan showed the fusion was intact. Contrary to instructions, the patient stopped wearing the back brace and discontinued physical therapy. He then began to experience back pain. The physician’s documentation successfully countered the patient’s claim that the surgery was performed incorrectly.

When a patient chooses not to follow instructions, doctors should clearly outline the possible consequences and document the conversation. Documenting the patient’s failure to follow instructions provides a more comprehensive clinical picture and may be useful in defending care if needed.

Expert reviewers also found that patient non-adherence was more likely when there was inadequate communication between the patient/family and providers, a contributing factor in 12 percent of claims. This included issues such as inadequate informed consent for surgical or invasive procedures, poor rapport, language barriers, inadequate discharge instructions and follow-up instructions, and insufficient information regarding the risks of medications.

The bottom line: Even when good care is provided, a claim can arise when a patient’s expectations are not met. Since most physicians discuss and document the risks and benefits of surgery during informed consent discussions, the study findings suggest that patients either don’t understand the risks, don’t remember the risks, or don’t have enough clinical knowledge to connect the risks explained before the procedure with the complications they experienced. Physicians should consider using preoperative educational programs to help patients better understand risks and benefits. When the outcome is less than desired, it is important to discuss the result and to outline options and plans for additional care with the patient and the patient’s family. It may be helpful to refer to discussions that took place prior to surgery, when the patient was informed of the risks and benefits related to treatment options.

This study also underscores the importance of healthcare teams and patients partnering to achieve better outcomes, not just in orthopedics but in all specialties. The informed consent process should be a back-and-forth discussion between patient and doctor to ensure patient understanding. Effective communication before and after a procedure can also help patients adhere to the medication and treatment plan. Doctors and hospital risk managers should consider the findings of this study and scrutinize their systems and processes to reduce the likelihood of adverse outcomes. For more information on the study visit

David Troxel, MD is Medical Director of The Doctors Company

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