Malpractice against shoulder surgeons: what the data say

Abstract

Background: Thousands of orthopedic surgeons in the United State face medical malpractice claims annually; however, little is known regarding the common causes for litigation against shoulder surgeons. In addition, the current analysis does not take into consideration how surgical frequency affects the litigation likelihood. The purpose of our investigation was to identify the most common causes of litigation against shoulder surgeons in the United States adjusting for surgical frequency.

Methods: The VerdictSearch database was used using the search terms "medical malpractice," "shoulder," and "NOT cancer." Results were queried, and all studies pertaining to orthopedic shoulder surgery included. Data gathered included cause of lawsuit, indemnity paid, type of surgery performed, results of the cases, verdict or settlement, and, if applicable, technical error. A query of a multisurgeon institutional database was conducted to determine how frequently surgeries were performed. Then the frequency of litigation was adjusted by the procedure frequency to determine which surgery has the greatest likelihood to be litigated relative to rotator cuff surgery.

Results: Forty-five cases were included in our study. After adjusting for the procedure frequency, the most likely procedure to be litigated, relative to rotator cuff repair, was manipulation under anesthesia (MUA), 251 times more likely to be litigated, and washout/lavage procedures, 17 times more likely to be litigated. Injection and total shoulder arthroplasty were 23 and 14 times less likely to be litigated relative to rotator cuff repair, respectively. In addition, the average age of the patients was 47 years, and 53% of the cases involved a male plaintiff. The most commonly litigated procedures were rotator cuff repair (42%), MUA (13%), and humeral open reduction and internal fixation (9%). The most commonly cited symptoms for litigation against shoulder surgeons were pain (60%) and loss of range of motion (40%). Of the 45 cases, 44% ended in physician loss, with the average indemnity paid via verdict being $1,118,714 vs. $416,875 for settlement.

Conclusions: This study identifies that MUA and lavage/washout procedures are much more likely to be litigated relative to rotator cuff repair. Rotator cuff repair is actually one of the least likely procedures to be litigated. Furthermore, settlement may represent a method of decreasing the indemnity paid for malpractice cases for which surgeons are implicated.

Keywords: Shoulder; indemnity; lawsuit; litigation; malpractice; procedure.