SUPPLEMENT ARTICLE
Medical Liability and Orthopaedic Trauma: History and Current State of Affairs Douglas W. Lundy, MD, MBA, FACS
Summary: Orthopaedic trauma has been associated with the history of medical liability all the way back to the dark ages and the bubonic plague. Caps on noneconomic damages and other reforms have been challenged in many states, and an innovative approach to medical liability reform must be developed within the medical profession and the various legislatures. Orthopaedic trauma surgeons have a unique perspective in that they perform a critical service to the community, however they are often deprived of the benefit of preoperative risk reduction best practices because of the critical needs of the patients. Orthopaedic trauma surgeons must advocate for effective medical liability reforms. Key Words: medical, liability, history, current state (J Orthop Trauma 2014;28:S17–S19)
HISTORY OF MEDICAL LIABILITY An understanding of the basis of our legal system is integral to comprehend the current medico-legal environment as it pertains to orthopaedic trauma. Like much of our culture and heritage, our legal system was adopted from England. The British used the so-called Common Law system that was derived from Scandinavian and folk law. This is different from much of the rest of Europe that used a Civil Law system that was derived from the Roman legal structure. The big difference is that the system under Common Law was formed by decisions made by judges in different cases, and this resulted in a codified system. Civil Law was more based on written laws and judges delivered by justice based on these laws. The Common Law system is adversarial in nature in that the 2 sides argued before the judge to obtain justice. The tort system had not been developed yet, and there was no compensation for those who had been personally wronged.1 The first medical malpractice crisis seems to have occurred between 1346 and 1381 during the time of the bubonic plague. Because the Black Death destroyed so much of the population of Europe, human resources attained a tremendous value, and any loss of workforce further strained the already damaged economy. Interestingly, physicians were held according to the standard of “curing” rather than “treating.” As a result, physicians were prosecuted for Accepted for publication July 17, 2014. From Resurgens Orthopaedics, Atlanta, GA. The author reports no conflict of interest. Reprints: Douglas W. Lundy, MD, MBA, FACS, Resurgens Orthopaedics, 5671 Peachtree Dunwoody Road, Suite 700, Atlanta, GA 30342 (e-mail: [email protected]). Copyright © 2014 by Lippincott Williams & Wilkins
mayhem under criminal law. It finally became apparent that this was inappropriate, and the physicians were then pursued under the civil system for “trespass.” Apparently, there were a significant number of cases brought against physicians during this time for failure to successfully cure patients with Yersinia pestis even though antibiotics were not even discovered until hundreds of years later!1 It is hard to underestimate the effect of a single case, especially before the modern age of mass digital communications. One of the more infamous medical liability cases in American history involved an patient with orthopaedic trauma. This case is important in that it defined a change in the way that physicians viewed medical malpractice and changed the landscape in legal medicine thereafter. This case involved Mr Charles Lowell who sustained a dislocation of his left hip after a horse-related injury on 7 September 1821. Dr Faxon and Dr Hawkes attempted to reduce Mr Lowell’s dislocation; and after a prolonged effort, they stopped when they incorrectly believed that the hip was reduced. Three months after the injury, the patient traveled to Boston to see Dr J. Collins Warren who was the first chief surgeon at Massachusetts General Hospital. Against his better judgment, Dr Warren was persuaded by Mr Lowell to attempt additional reduction maneuvers that all failed. Mr Lowell eventually sued all 3 of these physicians and received a jury award of $1962 (inflation would make this equal to $39,240 in 2013 dollars). This judgment was appealed, and the next 2 trials resulted in hung juries. The patient wrote many letters with “horrible ad hominen attacks” against all of the involved physicians that were published in many newspapers across the country. The significant negative publicity caused by the patient in this case affected the perception of medical liability throughout the United States. Dr Herndon blames this case for beginning the first malpractice crisis in the United States continuing through 1910. Ninety percent of the medical liability cases that were brought after the Lowell case were “amputations, fractures, or dislocations.”2
CURRENT STATE OF AFFAIRS The current state of affairs in medical liability in the United States can be considered as follows: • Current state of medical liability in the United States, • Current status of federal medical liability reform, and • Current status of state medical liability reform. The threat of medical liability for orthopaedic trauma surgeons has changed little. In a Physician Insurers Association of America study, physicians actually won 91% of the medical liability cases that made it to trial. Fifty-two percent of the
J Orthop Trauma Volume 28, Number 10 Supplement, October 2014
www.jorthotrauma.com |
S17
J Orthop Trauma Volume 28, Number 10 Supplement, October 2014
Lundy
cases in this series were dropped, dismissed, or withdrawn by the plaintiff. Jena et al reported that orthopaedic surgeons are the fourth most likely to be sued medical specialty. They found that 88% of 45-year-old orthopaedic surgeons and 99% of 65-year-old orthopaedic surgeons had been sued at least once for medical malpractice.3 There remains a substantial level of anxiety and frustration in the medical community regarding the ever-present threat of medical liability although physicians typically fare well in the process. Understandably, physicians interpret these cases as a threat to their competence, professionalism, and their ability to continue to practice, and they deem the suit as a personal offense. Although many outside the physician community see medical liability suits as the “cost of doing business,” this perception is not commonly shared by physicians. As a result, the practice of defensive medicine tends to run rampant in the United States inflating the already high costs of healthcare. A study by Miller et al4 found that 34.7% of the total cost of orthopaedic imaging was due to the practice of defensive medicine. Another interesting finding in this study was that the more experienced surgeons tended to order more “defensive” imaging studies than did younger orthopaedic surgeons. The cost of defensive medicine has been estimated through Jackson Healthcare and the Gallup polling organization to be between $650 billion and $850 billion annually.5 The commonly quoted study by Kessler and McClellan6 estimated that reduction in the practice of defensive medicine would save the nation 5%–9% in cost. Other studies also emphasize the cost and risk to patients that the practice of defensive medicine adds to the healthcare system.7 The medical liability system in the United States remains highly flawed with poor compensation of negligently injured patients and frivolous harassment of physicians. Injured patients only receive 28% of the money paid into the medical liability system, and the other 72% is consumed in the cost of the system that does little if anything to make right the injuries of affected patients.8 This incredible disproportionate allocation emphasizes how broken the system actually is. Kakalik and Pace9 found similar data in that 60% of the compensation designed for patients was spent on administrative and legal costs. Orthopaedic surgeons also spend a significant amount of money defending themselves against liability suits that end up being dismissed. The 2011 American Academy of Orthopaedic Surgeons Member Survey asked questions about lawsuit exposure. The average respondent reported that they had been sued 3.17 times in their career and the most common case involved “urgent or emergent” procedures. Because cases representing fracture care are disproportionally represented in negligence lawsuits, orthopaedic trauma surgeons must be especially aware. Medical liability reform on a national basis is not likely to become a reality in the near future. Since 2004, the US House of Representatives has passed multiple pieces of legislation authorizing medical liability reform only to see these efforts thwarted by the Senate. Although the House continues to move legislation for reform, the prospect of gaining federal relief any time soon is highly unlikely. The Republican leadership unsuccessfully advocated for caps on noneconomic damages to be added to the Affordable Care Act (ACA) arguing that this would decrease the overall cost
S18
| www.jorthotrauma.com
of healthcare in the United States. Douglas Elmendorf, the current Director of the Congressional Budget Office, stated that caps on noneconomic damages in medical liability suites would save the nation $54 billion between 2010 and 2019. The authors of the ACA missed a valuable opportunity when they did very little to address the problem of medical liability reform in the United States when they crafted the law. The only stipulation for medical liability reform in the law was to authorize $50 million to allow states to design demonstration projects to address the high cost of medical liability. On a state level, the level of reforms varies across the nation. Certain states, such as Texas and California, are well known for their successful efforts in medical liability reform. Other states, such as Pennsylvania and Florida, are well known for being relatively unfriendly toward physicians in terms of medical liability. State-level medical liability reform began in California when the Medical Injury Compensation Reform Act (MICRA) was passed in 1975, limiting caps on noneconomic damages to $250,000. MICRA has successfully reduced the cost of medical liability in California making it one of the least expensive states for several decades. Although MICRA has been challenged since its inception, increasingly aggressive efforts have been mounted in the last several years to overturn this law. Texas also has very progressive reforms as well. Other states are more precarious for physicians in terms of the medical liability environment. Florida successfully passed the “three strikes” legislation in medical liability cases. Although these ideas were initially intended to provide harsher sentences for habitual criminal offenders, this same mentality was passed onto physicians in medical liability cases. Signed into law in 2005, the “Three Strikes and You’re Out” legislation requires the Florida Board of Medicine to revoke the medical license of any physician who has had 3 adjudicated cases. This includes any case that results in a judgment from a malpractice lawsuit, disciplinary actions, decisions from binding arbitration in malpractice cases, and malpractice cases from other states. The result of this legislation is that physicians now settle trivial cases rather than defending them for fear of gaining a “strike.” The result of the law was to drive up the cost of medical liability in Florida forcing many physicians to “go bare” in that they do not carry medical liability insurance.10 Pennsylvania has some of the highest costs in medical liability insurance in the country. The state instituted the Medical Care Availability and Reduction of Error Fund that provides medical liability insurance coverage above the required amount that is purchased by the physicians. Currently, physicians in Pennsylvania are required to purchase $750,000 in medical liability coverage, and the Medical Care Availability and Reduction of Error Fund provides an additional $250,000 in coverage. The current status of medical liability in Pennsylvania remains unstable, and the cost of insurance is still very high. Initiatives in medical liability reform are currently composed of caps on noneconomic damages, joint, and several liability, collateral damages, and caps on attorney fees. More progressive reforms include specialized medical courts. These courts would be staffed by medically trained judges who would decide cases without juries. Although 2014 Lippincott Williams & Wilkins
J Orthop Trauma Volume 28, Number 10 Supplement, October 2014
these courts would most likely help injured patients by distributing scheduled noneconomic damages and ensuring quicker payments, opponents to the idea state that patients would be deprived of their right to trial by jury and that the system is biased toward physicians. Demonstration projects funded by the ACA continue to look at the issue of medical liability reform. Another thought suggests that physicians should be protected by legal action when they are practicing in accordance with specialty society-approved clinical practice guidelines. The nation is in need of effective medical liability reform to more effectively compensate negligently injured patients, lessen cost in the system, and reduce antiphysician behavior in the legal community. Orthopaedic trauma surgeons are especially poised to advocate for reform because they perform a critical service for the nation without the benefit of patient selection and an ideal preoperative workup. REFERENCES 1. American College of Legal Medicine. The Medical Malpractice Survival Handbook. Philadelphia PA: Mosby; 2007.
2014 Lippincott Williams & Wilkins
History of Medical Liability
2. Herndon JH. An orthopaedic case contributed substantially to the first malpractice crisis in the United States in the nineteenth century. J Bone Joint Surg. 2012;94:e129. 3. Jena AB, Seabury S, Lakdawalla D, et al. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629–636. 4. Miller RA, Sampson NR, Flynn JM. The prevalence of defensive orthopaedic imaging: a prospective practice audit in pennsylvania. J Bone Joint Surg. 2012;94:e18. 5. Baltic S. How Much does Defensive Medicine Cost? Medical Economics [serial online]. August 9, 2013. Available at: http://medicaleconomics. modernmedicine.com/medical-economics/news/how-much-does-defensivemedicine-cost?page=full. Accessed May 18, 2014. 6. Kessler DP, McClellan MB. How liability law affects medical productivity. J Health Econ. 2002;21:931–955. 7. Sathiyakumar V, Jahangirr AA, Mir HR, et al. The prevalence and costs of defensive medicine among orthopaedic trauma surgeons: a national survey study. J Orthop Trauma. 2013;27:592–597. 8. Weinstein SL. Medical liability reform crisis 2008. Clin Orthop Relat Res. 2009;467:392–401. 9. Kakalik JS, Pace NM. Costs and Compensation Paid in Tort Litigation. R-3391-ICJ. Santa Monica, CA: Institute for Civil Justice, RAND; 1986. 10. Barach P. The Unintended Consequences of Florida Medical Liability Legislation. AHRQ. Available at: http://webmm.ahrq.gov/perspective. aspx?perspectiveID=14#ref7. Accessed May 18, 2014.
www.jorthotrauma.com |
S19
Medical Liability and Orthopaedic Trauma: History and Current State of Affairs Douglas W. Lundy, MD, MBA, FACS
Summary: Orthopaedic trauma has been associated with the history of medical liability all the way back to the dark ages and the bubonic plague. Caps on noneconomic damages and other reforms have been challenged in many states, and an innovative approach to medical liability reform must be developed within the medical profession and the various legislatures. Orthopaedic trauma surgeons have a unique perspective in that they perform a critical service to the community, however they are often deprived of the benefit of preoperative risk reduction best practices because of the critical needs of the patients. Orthopaedic trauma surgeons must advocate for effective medical liability reforms. Key Words: medical, liability, history, current state (J Orthop Trauma 2014;28:S17–S19)
HISTORY OF MEDICAL LIABILITY An understanding of the basis of our legal system is integral to comprehend the current medico-legal environment as it pertains to orthopaedic trauma. Like much of our culture and heritage, our legal system was adopted from England. The British used the so-called Common Law system that was derived from Scandinavian and folk law. This is different from much of the rest of Europe that used a Civil Law system that was derived from the Roman legal structure. The big difference is that the system under Common Law was formed by decisions made by judges in different cases, and this resulted in a codified system. Civil Law was more based on written laws and judges delivered by justice based on these laws. The Common Law system is adversarial in nature in that the 2 sides argued before the judge to obtain justice. The tort system had not been developed yet, and there was no compensation for those who had been personally wronged.1 The first medical malpractice crisis seems to have occurred between 1346 and 1381 during the time of the bubonic plague. Because the Black Death destroyed so much of the population of Europe, human resources attained a tremendous value, and any loss of workforce further strained the already damaged economy. Interestingly, physicians were held according to the standard of “curing” rather than “treating.” As a result, physicians were prosecuted for Accepted for publication July 17, 2014. From Resurgens Orthopaedics, Atlanta, GA. The author reports no conflict of interest. Reprints: Douglas W. Lundy, MD, MBA, FACS, Resurgens Orthopaedics, 5671 Peachtree Dunwoody Road, Suite 700, Atlanta, GA 30342 (e-mail: [email protected]). Copyright © 2014 by Lippincott Williams & Wilkins
mayhem under criminal law. It finally became apparent that this was inappropriate, and the physicians were then pursued under the civil system for “trespass.” Apparently, there were a significant number of cases brought against physicians during this time for failure to successfully cure patients with Yersinia pestis even though antibiotics were not even discovered until hundreds of years later!1 It is hard to underestimate the effect of a single case, especially before the modern age of mass digital communications. One of the more infamous medical liability cases in American history involved an patient with orthopaedic trauma. This case is important in that it defined a change in the way that physicians viewed medical malpractice and changed the landscape in legal medicine thereafter. This case involved Mr Charles Lowell who sustained a dislocation of his left hip after a horse-related injury on 7 September 1821. Dr Faxon and Dr Hawkes attempted to reduce Mr Lowell’s dislocation; and after a prolonged effort, they stopped when they incorrectly believed that the hip was reduced. Three months after the injury, the patient traveled to Boston to see Dr J. Collins Warren who was the first chief surgeon at Massachusetts General Hospital. Against his better judgment, Dr Warren was persuaded by Mr Lowell to attempt additional reduction maneuvers that all failed. Mr Lowell eventually sued all 3 of these physicians and received a jury award of $1962 (inflation would make this equal to $39,240 in 2013 dollars). This judgment was appealed, and the next 2 trials resulted in hung juries. The patient wrote many letters with “horrible ad hominen attacks” against all of the involved physicians that were published in many newspapers across the country. The significant negative publicity caused by the patient in this case affected the perception of medical liability throughout the United States. Dr Herndon blames this case for beginning the first malpractice crisis in the United States continuing through 1910. Ninety percent of the medical liability cases that were brought after the Lowell case were “amputations, fractures, or dislocations.”2
CURRENT STATE OF AFFAIRS The current state of affairs in medical liability in the United States can be considered as follows: • Current state of medical liability in the United States, • Current status of federal medical liability reform, and • Current status of state medical liability reform. The threat of medical liability for orthopaedic trauma surgeons has changed little. In a Physician Insurers Association of America study, physicians actually won 91% of the medical liability cases that made it to trial. Fifty-two percent of the
J Orthop Trauma Volume 28, Number 10 Supplement, October 2014
www.jorthotrauma.com |
S17
J Orthop Trauma Volume 28, Number 10 Supplement, October 2014
Lundy
cases in this series were dropped, dismissed, or withdrawn by the plaintiff. Jena et al reported that orthopaedic surgeons are the fourth most likely to be sued medical specialty. They found that 88% of 45-year-old orthopaedic surgeons and 99% of 65-year-old orthopaedic surgeons had been sued at least once for medical malpractice.3 There remains a substantial level of anxiety and frustration in the medical community regarding the ever-present threat of medical liability although physicians typically fare well in the process. Understandably, physicians interpret these cases as a threat to their competence, professionalism, and their ability to continue to practice, and they deem the suit as a personal offense. Although many outside the physician community see medical liability suits as the “cost of doing business,” this perception is not commonly shared by physicians. As a result, the practice of defensive medicine tends to run rampant in the United States inflating the already high costs of healthcare. A study by Miller et al4 found that 34.7% of the total cost of orthopaedic imaging was due to the practice of defensive medicine. Another interesting finding in this study was that the more experienced surgeons tended to order more “defensive” imaging studies than did younger orthopaedic surgeons. The cost of defensive medicine has been estimated through Jackson Healthcare and the Gallup polling organization to be between $650 billion and $850 billion annually.5 The commonly quoted study by Kessler and McClellan6 estimated that reduction in the practice of defensive medicine would save the nation 5%–9% in cost. Other studies also emphasize the cost and risk to patients that the practice of defensive medicine adds to the healthcare system.7 The medical liability system in the United States remains highly flawed with poor compensation of negligently injured patients and frivolous harassment of physicians. Injured patients only receive 28% of the money paid into the medical liability system, and the other 72% is consumed in the cost of the system that does little if anything to make right the injuries of affected patients.8 This incredible disproportionate allocation emphasizes how broken the system actually is. Kakalik and Pace9 found similar data in that 60% of the compensation designed for patients was spent on administrative and legal costs. Orthopaedic surgeons also spend a significant amount of money defending themselves against liability suits that end up being dismissed. The 2011 American Academy of Orthopaedic Surgeons Member Survey asked questions about lawsuit exposure. The average respondent reported that they had been sued 3.17 times in their career and the most common case involved “urgent or emergent” procedures. Because cases representing fracture care are disproportionally represented in negligence lawsuits, orthopaedic trauma surgeons must be especially aware. Medical liability reform on a national basis is not likely to become a reality in the near future. Since 2004, the US House of Representatives has passed multiple pieces of legislation authorizing medical liability reform only to see these efforts thwarted by the Senate. Although the House continues to move legislation for reform, the prospect of gaining federal relief any time soon is highly unlikely. The Republican leadership unsuccessfully advocated for caps on noneconomic damages to be added to the Affordable Care Act (ACA) arguing that this would decrease the overall cost
S18
| www.jorthotrauma.com
of healthcare in the United States. Douglas Elmendorf, the current Director of the Congressional Budget Office, stated that caps on noneconomic damages in medical liability suites would save the nation $54 billion between 2010 and 2019. The authors of the ACA missed a valuable opportunity when they did very little to address the problem of medical liability reform in the United States when they crafted the law. The only stipulation for medical liability reform in the law was to authorize $50 million to allow states to design demonstration projects to address the high cost of medical liability. On a state level, the level of reforms varies across the nation. Certain states, such as Texas and California, are well known for their successful efforts in medical liability reform. Other states, such as Pennsylvania and Florida, are well known for being relatively unfriendly toward physicians in terms of medical liability. State-level medical liability reform began in California when the Medical Injury Compensation Reform Act (MICRA) was passed in 1975, limiting caps on noneconomic damages to $250,000. MICRA has successfully reduced the cost of medical liability in California making it one of the least expensive states for several decades. Although MICRA has been challenged since its inception, increasingly aggressive efforts have been mounted in the last several years to overturn this law. Texas also has very progressive reforms as well. Other states are more precarious for physicians in terms of the medical liability environment. Florida successfully passed the “three strikes” legislation in medical liability cases. Although these ideas were initially intended to provide harsher sentences for habitual criminal offenders, this same mentality was passed onto physicians in medical liability cases. Signed into law in 2005, the “Three Strikes and You’re Out” legislation requires the Florida Board of Medicine to revoke the medical license of any physician who has had 3 adjudicated cases. This includes any case that results in a judgment from a malpractice lawsuit, disciplinary actions, decisions from binding arbitration in malpractice cases, and malpractice cases from other states. The result of this legislation is that physicians now settle trivial cases rather than defending them for fear of gaining a “strike.” The result of the law was to drive up the cost of medical liability in Florida forcing many physicians to “go bare” in that they do not carry medical liability insurance.10 Pennsylvania has some of the highest costs in medical liability insurance in the country. The state instituted the Medical Care Availability and Reduction of Error Fund that provides medical liability insurance coverage above the required amount that is purchased by the physicians. Currently, physicians in Pennsylvania are required to purchase $750,000 in medical liability coverage, and the Medical Care Availability and Reduction of Error Fund provides an additional $250,000 in coverage. The current status of medical liability in Pennsylvania remains unstable, and the cost of insurance is still very high. Initiatives in medical liability reform are currently composed of caps on noneconomic damages, joint, and several liability, collateral damages, and caps on attorney fees. More progressive reforms include specialized medical courts. These courts would be staffed by medically trained judges who would decide cases without juries. Although 2014 Lippincott Williams & Wilkins
J Orthop Trauma Volume 28, Number 10 Supplement, October 2014
these courts would most likely help injured patients by distributing scheduled noneconomic damages and ensuring quicker payments, opponents to the idea state that patients would be deprived of their right to trial by jury and that the system is biased toward physicians. Demonstration projects funded by the ACA continue to look at the issue of medical liability reform. Another thought suggests that physicians should be protected by legal action when they are practicing in accordance with specialty society-approved clinical practice guidelines. The nation is in need of effective medical liability reform to more effectively compensate negligently injured patients, lessen cost in the system, and reduce antiphysician behavior in the legal community. Orthopaedic trauma surgeons are especially poised to advocate for reform because they perform a critical service for the nation without the benefit of patient selection and an ideal preoperative workup. REFERENCES 1. American College of Legal Medicine. The Medical Malpractice Survival Handbook. Philadelphia PA: Mosby; 2007.
2014 Lippincott Williams & Wilkins
History of Medical Liability
2. Herndon JH. An orthopaedic case contributed substantially to the first malpractice crisis in the United States in the nineteenth century. J Bone Joint Surg. 2012;94:e129. 3. Jena AB, Seabury S, Lakdawalla D, et al. Malpractice risk according to physician specialty. N Engl J Med. 2011;365:629–636. 4. Miller RA, Sampson NR, Flynn JM. The prevalence of defensive orthopaedic imaging: a prospective practice audit in pennsylvania. J Bone Joint Surg. 2012;94:e18. 5. Baltic S. How Much does Defensive Medicine Cost? Medical Economics [serial online]. August 9, 2013. Available at: http://medicaleconomics. modernmedicine.com/medical-economics/news/how-much-does-defensivemedicine-cost?page=full. Accessed May 18, 2014. 6. Kessler DP, McClellan MB. How liability law affects medical productivity. J Health Econ. 2002;21:931–955. 7. Sathiyakumar V, Jahangirr AA, Mir HR, et al. The prevalence and costs of defensive medicine among orthopaedic trauma surgeons: a national survey study. J Orthop Trauma. 2013;27:592–597. 8. Weinstein SL. Medical liability reform crisis 2008. Clin Orthop Relat Res. 2009;467:392–401. 9. Kakalik JS, Pace NM. Costs and Compensation Paid in Tort Litigation. R-3391-ICJ. Santa Monica, CA: Institute for Civil Justice, RAND; 1986. 10. Barach P. The Unintended Consequences of Florida Medical Liability Legislation. AHRQ. Available at: http://webmm.ahrq.gov/perspective. aspx?perspectiveID=14#ref7. Accessed May 18, 2014.
www.jorthotrauma.com |
S19
