An Attorney’s Guide to Orthopedic Malpractice Claims

Orthopedists and orthopedic surgeons are the third-most likely medical professionals to be sued in a medical malpractice lawsuit. As one report has indicated, more than 80% of healthcare providers in this field have been named in at least one malpractice suit, with 99% risk of orthopedic surgeons being sued at least once during their career. This statistic, coupled with the overall trend of record-high medical malpractice jury awards (Pennsylvania ranking 6th highest in awards in a recent survey), makes it likely that an orthopedic medical malpractice lawsuit will yield a large verdict. In order to successfully litigate these claims, either from a plaintiff or defendant perspective, expert assistance is crucial.

Why Orthopedics?

So what makes these professionals more likely to be sued? Orthopedic doctors specialize in injuries of the musculoskeletal system, which includes injuries sustained to muscles, bones, joints, ligaments, and tendons. Orthopedic surgeons possess the expertise to perform surgery to repair an injury, when necessary. Perhaps the fact that almost everyone experiences pain in these areas at some point in their life, many times of which requiring medical attention, may contribute to the specialty’s malpractice rates.

The most common allegations in these medical malpractice suits include surgical errors (which account for 85% of orthopedic surgery claims), errors in technical skills (46%), misdiagnosis (22%) and clinical judgment (15%). Patients who undergo elective surgery are more likely to file lawsuits than emergency or trauma patients. The most common claimed injuries include mobility problems (37.2%), discomfort and pain (15.9%), and poor surgical outcomes requiring reoperation (15.2%). The most frequent procedures involved in claims were total hip arthroplasty and lumbar decompression.

Notable Sports Medicine Cases

Orthopedic sports medicine is another subspecialty that may contribute to the increased malpractice rates in this profession, in light of the high stakes involved when treating a patient whose livelihood depends on their physical performance.

Last year, the former Philadelphia Eagles captain, Chris Maragos, was awarded $43.5 million in a medical malpractice case against his orthopedic surgeon after sustaining a career-ending knee injury. Maragos suffered from a meniscus tear in his right knee during a game in 2017 and was treated by orthopedic surgeon, James Bradley, and Rothman Orthopaedics. According to Maragos, after he underwent surgery his rehabilitation was advanced too soon, despite a 2018 MRI indicating that he was still suffering from a partial tear. The Philadelphia jury found that the doctor’s orders advancing Maragos to rehab had resulted in further complications and the subsequent premature end of his NFL career. Maragos presented testimony from an expert in the field of orthopedic medicine, which defense counsel criticized as inappropriate, as the expert was a trauma surgeon, not a sports medicine doctor.

In another landmark lawsuit, the former Minnesota Vikings defensive tackle, Sharrif Floyd, sued well-known orthopedic surgeon, James Andrews, for $180 million after an allegedly unnecessary surgery was performed on Floyd during a routine arthroscopic surgery. Floyd alleged that, instead of a knee scope, the doctor performed a cartilage-regrowth procedure that involved drilling into the bone, as well as a post-operative adductor-canal nerve block, without his consent. Floyd claimed that the nerve block caused debilitating muscle and nerve damage, causing him to end his career. The former football player settled with the defendants for an undisclosed amount.

More recently, just last year, the former offensive tackle for the Tennessee Titans, Taylor Lewan, also sued Dr. James Andrews, alleging that a 2020 surgery that was supposed to repair his torn ACL resulted in permanent, career-ending damage.

It is not just cases involving professional athletes that can result in orthopedic malpractice claims. In the case of Tahani Spearman, individually and as guardian ad litem for Taylor Ivory, a minor v. Prasad V. Gourineni, M.D., Prasad Gourineni, M.D., S.C. d/b/a Pediatric & Young Adult Orthopedics, a promising 13-year old basketball player on a nationally ranked high school team received $2.6 million in damages after she underwent an unnecessary hip replacement surgery.

How Can the Experts Weigh In?

As a plaintiff in an orthopedics case, it is likely that the claim will involve some sort of medical or surgical error (as these are the most commonly seen claims). Of course, the line between a medical error due to negligence and an unpreventable risk or complication of surgery is very thin. Surgical errors are also very broad and can apply to egregious mistakes (such as performing surgery on the wrong side of the patient) as well as those that are less obvious. Expert testimony can help establish the standard of care not just for the orthopedics profession as a whole but as it relates to the specific subspecialty of the surgery performed. Experts can also assist in evaluating the findings in X-ray, CT, and MRI scans. A plaintiff’s case that shows injuries in these objective factors is typically easier to prove than one that focuses solely on pain and discomfort, as these complaints are more subjective.

From a defense perspective, some research suggests that the presence of medical experts  within the healthcare institution itself, who are well-versed in the ins and outs of medical testimony, can lower malpractice suits, as the knowledge of malpractice procedures can lead to a higher level of alertness in avoiding a lawsuit. In addition, the trend of elective surgeries yielding more lawsuits than emergency surgeries (61% vs. 39% of lawsuits) suggests that patients may have higher expectations prior to an elective surgery in comparison to an unforeseen operation. One study has suggested that patient psychological factors, including preoperative stress, post-operative manifestations, poor communication, and skewed expectations due to social media, may also play a role in a patient’s perceptions of the surgical outcome. In the litigation context, an orthopedics expert can help explain the discrepancies between patient and surgeon expectations that perhaps are unrelated to any negligence on the doctor’s behalf.

Overall, with orthopedic surgery among the top five medical specialities with an increased risk of medical malpractice claims, it is critical that plaintiffs and defendants alike both educate themselves on the complexities involved in the litigation of these claims.

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