LEGAL CASE AGAINST

ORTHOPEDICIAN:
WHY, WHEN, WHO & WHAT?

HOW TO PREVENT IT
DR. RAHUL KATTA

M.S., M.Ch.[orth.], PGDMLE [ Post Graduate in Medical

Law & Ethics]
SICOT INDIA Regional Chairman - North
Vice President Jaipur Medical Association
Director, Katta Hospital, Jaipur

Medical Errors have been going

on for a long time; patients and
health care workers have known
this; most are never reported;
mistakes have been buried;
patients have died from
preventable mistakes.

From the age of the healing touch to the

age of the omniscient scan what has
been the biggest game changer in
the way in which medicine is practiced
today

Its not a drug, not a procedure,

not even a theory.

It is malpractice
lawsuits

Medical errors
and medical
malpractice are
largely
unrelated
phenomena.

Most lawsuits are not the result of errors

and most errors do not result in lawsuits
Even if we could eliminate every medical
error, 80% of lawsuits would remain
Localio AR, Relation between malpractice claims and adverse events due to negligence ? results of the Harvard Medical Practice Study III. N Engl J Med 1991;325:245-251.

HAVE YOU EVER HEARD

SOME ONE SAY:
Hospitals are where you go to die.
I didnt get better, I got worse.
I dont think they knew what they were doing!
I couldnt understand a word he said.
Get a second opinion!!!
I wasnt sick until I went into the hospital

Why do patients sue?

Original injury is not enough.

Prime concern:

Perceived lack of caring

Reasons for litigation

1) Altruism
2) Expose the truth
3) Financial restitution.

Lack of communication.

Over 1/3 would have opted out

of litigation with explanation, apology

Why do people sue doctors?

Four main themes emerged from the analysis of reasons
for litigation:

concern with standards of care

the need for an explanation
compensation
accountability

WHY OTHOPEDIACIANS MORE PRONE?

varied treatments
rank absence of fact-based certainty
difficult to hedge surgical decisionmaking
easy to measure surgeon`s
performance by X ray
risks of functional disability
surgeons often unwilling to
communicate the uncertainty

Why orthopedics?
Personality
This continue to be an important liability issue
given the competitiveness of the orthopedic
surgeons, the fast pace of introduction of new
technologies and emerging surgical techniques that
have not been taught to many surgeons during
residency training?

Surgeon characteristics and medical

malpractice: Are orthopedists at risk?
Characteristics of Surgeons with High and Low Malpractice Claims Rates
among orthopedic surgeons, the completion of a fellowship, belonging to
academic clinical faculty, membership in professional societies, education at a
domestic versus an overseas medical school, specialty board certification, and
group, rather than solo, practice are associated with low rates of claims filing.
Moral reasoning and malpractice.
A pilot study of orthopedic surgeons.
Orthopedic surgeons with fewer than 0.20 claims per year demonstrated
significantly (P = 0.04) higher levels of moral reasoning

that high levels of moral reasoning may provide a

protective element against malpractice claims.

Am J Orthop (Belle Mead NJ). 1996 Jul;25(7):481-4.

WHEN
For a lawsuit to be filed a patient or a
patients family has to feel wronged in
some way as to seek out a lawyer.
There will always be bad outcomes in
medical treatment. The difference
between bad outcomes and lawsuits is
the way a patient feels about the care
and the people who rendered it.

WHEN
"People sue when trust is broken
between the family and provider"

WHEN
It is a myth that a
frank admission of
fault will always
avoid a negligence
action.
There are plenty of
cases where claimants
say that they must
have a case because
the doctor has
admitted it:

WHO
How physicians
communicate with patients,
especially after an adverse
outcome, can determine
whether they are sued,
despite the level of injury or
their own liability.
Numerous studies have shown that

physicians who are candid

with patients and spend
more time answering
questions are less likely to
be sued.

will sue

WHO

will sue

People who have higher social statuses, live in

urban areas and have higher education are more
likely to file claims.

Another contributing factor is whether

the patient personally knows a doctor
or lawyer.
A study in Clinical Orthopaedics
and Related Research found
that poor people are less

likely to sue their doctors

than wealthier patients.

The top plaintiff allegations for orthopedic surgeries

include:
52% alleging improper performance of the surgery
14% alleging errors in diagnosis
8% alleging failure to recognize complication of
treatment
6% alleging failure to supervise or monitor the case
20% other allegations

WHO

will sue

How doctors can spot

patients likely to sue
There are individuals in society where it
doesn't matter what happens to them;
they're going to look the other way,
Patients' behavior can be a telling sign of whether they are
apt to sue.

The patient who is very demanding

about what they want and expect you to
give them, 'or else,' puts you on guard.
Other legally risky behaviors include patients who
ask for a diagnosis beyond a physician's
expertise, who complain about being mistreated
by other doctors or who have sued past
physicians

HOW patient can complain

Consumer Dispute Forum

Civil Court

Criminal Court

Medical Council

Legal Remedies for Patient

Consequences:

Police ( criminal law)

Consumer Forum ( CPA)
Courts ( civil law)
Medical council
( Professional misconduct)
Media ( TRP law)
Ransacking the hospital /
assaulting the staff

Types of Professional Negligence:

Civil Negligence: Malpractice, Deficiency in
Service
Criminal Negligence: gross lack of competency,
gross inattention
reckless behavior

LAW and the DOCTOR

The physician should be able to prove that he
used reasonable and ordinary care in the
treatment of his patient to the best of his
judgment.
He is, however, not liable for an error judgment.
The law expects a duly qualified physician to
use that degree of skill and care which an
average man of his qualifications ought to
have.
LAW does not expect him to bring the highest
possible degree of skill in the treatment of his
patients, or to be able to guarantee cures.

Theories of Negligence
Objective theory : there is carelessness in
approach towards the patient and the act of
commission results in injury to the patient
(a)Undertaking care beyond ones skill and
experience
(b)Giving harmful drugs un-necessarily to a patient;
(c)Injuries due to faulty techniques
(d)Overdoses of drugs, giving wrong drugs, etc.;
(e)Iatrogenic problems.

Theories of Negligence
Subjective theory, negligence is a mental attitude of
undue indifference act of omission
(i) Failure to attend to patient;
(ii)Failure to examine and investigate carefully
(iii)Failure to obtain proper consent for any procedure or
intervention;
(iv)Failure to give standard treatment;
(v)Failure to take proper precautions while giving
injections;
(vi)Failure to advise hospitalization; and
(vii)Abandoning treatment without making alternative
arrangements.

What is not Negligence

(i) Difference of opinion: If there are two accepted schools of thought,
any particular method may be adopted by the doctor in the patient.

(ii) Wrong diagnosis in spite of diligence: Missing a diagnosis is not

negligence, especially if due and timely efforts have been taken to arrive at the
proper diagnosis

(iii) Accidents: accident means an unintended and unforeseen injurious

occurrence, not negligence if such accidents are detected, attended and
managed within reasonable time.

(iv) Unexpected results: medicine is a "science of uncertainty and art of

probability occur inspite of proper diagnosis and adequate treatment

(v)Delegation of duties: to a qualified assistant, partner, laboratory

attendant or nursing staff

(vi) Inherent Risk: There is "assumption of risk" whenever treatment is

started

(vii ) Known Complication: Law accepts complications, even rare ones,

as an acceptable part of medicine

Death on
Operating Table

Our worries:
1.
2.
3.
4.
5.
6.
7.
8.

Can I give a Death Certificate?

Is PM mandatory?
Should I inform police?
Will the police arrest me?
What will happen to the reputation?
What will the court decide?
What is my indemnity cover?
Will relatives ransack the hospital?

INFORM POLICE & ASK FOR POST MORTUM

In most jurisdictions, deaths that occur
during or within a short time after surgical
operation, invasive procedure, become the
subject of a medicolegal investigation.
When the family suspect that malpractice has
occurred, they are unlikely to believe the
explanations provided by the specialists to justify
his management of the case and in this situation, an
autopsy [Post Mortum] can restore trust and resolve
conflicts by providing data viewed as objective by
the family.

Why is Consent
Necessary

Willing patient,
better outcome

defense against a
charge of assault /
battery

INFORMED CONSENT INGREDIENTS

A balance should be achieved between the need for

disclosing necessary and adequate information and
at the same time avoid the possibility of the patient
being deterred from agreeing to a necessary
treatment or offering to undergo an unnecessary
treatment.

Other cases where consent is must:

Whenever change the line of management, a
fresh valid consent is to be obtained.
Publishing information in the journals and
textbooks
Whenever organs are retained for
educational/research purpose
Educational purpose: medical students
examine/observe the patient

Effective Informed Consent Is

Crucial When Outcomes Are Not
Optimal

There are two things that you never want to hear

from a patient:

Had I known this would occur I would not have

chosen to do this.
I wish that I had known about plan B.

If my patient signed a
consent form, why can he
sue me?
The next time you take consent, remember that, rather than it
being a permission slip from the patient, it signifies that you
and the patient are agreeing to jointly enter the treatment
process. The patient must bear responsibility for any conduct
of his own that undercuts that process, but you retain your
full duty of care.
If patient is scarred after you performed the procedure
correctly, you are protected because you warned your patient
this might happen. You are not protected solely

because the patient signed a form that stated he

was assuming the risk.

Ann R Coll Surg Engl. 2010 April; 92(3): 246249.

PMCID: PMC308007

doi: 10.1308/003588410X12628812458257

Annals of The Royal College of Surgeons of England

Assessing the adequacy of procedure-specific

consent forms in orthopaedic surgery against
current methods of operative consent
Andrew W Barritt, Laura Clark, Victoria Teoh, Adam MM Cohen, and Paul A Gibb
Department of Orthopaedic Surgery, Kent and Sussex Hospital, Tunbridge Wells, UK

CONCLUSIONS
Providing patients with a procedure-specific
consent form significantly improves
knowledge of their planned procedure as well
as constituting a more robust means of
information provision and consent
documentation.
www.orthoconsent.com

INFORMED REFUSAL
When patients claim that they were not made aware
that refusing the proposed medical or surgical
treatment or consultation was a risky proposition.
That if their physician had appropriately informed them of the
ramifications of refusal, they would have realized that the benefits
outweighed those risks and would have consented to having the
recommended treatment/procedure.

In most clinical scenarios there are no perfect decisions

available, and proper choices are rarely obvious unless
viewed in retrospect. The most important factor in
reducing malpractice cases is for an orthopedic surgeon
to demonstrate that he has thoughtfully considered all the
reasonable alternatives, and has reasoned through the
consequences of his decision. The mere fact that a
patient suffers a bad outcome does not vitiate the
orthopedic surgeons defense that should be immune
from liability from a judgment decision.

PREVENTIVE MEASURES
How To Avoid Litigation

MEASURES
PREVENTION AT
PERSONAL LEVEL
Qualification
Communication
INTERPERSONAL LEVEL
Courteous and polite if
any mishap
ACADEMIC AND TECHNICAL
UP GRADATION
Attend CME,Workshops and
Conferences

PREVENTION AT PRACTICE
MEDICAL
Reasonable skill and care
SOCIAL
Exhibit skill to patient: body language
LEGAL
Document in legible handwriting
Record of failure
PEOPLE SUPPORT GROUPS
Forum to discuss acts and cases fought
Never talk loose of your colleague
MEDICAL ETHICS
Thorough knowledge is a must
PROFESSIONAL INDEMNITY
Insurance

Communication
Multiple studies have demonstrated

good communication is
associated with a decreased
risk of malpractice litigation.
A study found that the
communication skills
defined as the ability to convey
important procedural concepts
to the patient, of
orthopedic surgeons, is
generally lower than
that of other medical

Paternalism
an abuse of medical
knowledge in such a way
that the patient is deprived
of his ability to make
rational choice.

Avoid

MANAGEMENT
DOS

Update with latest management

by attending CME and
conferences
Employ qualified assistants
Update facilities and equipment
Obtain legally valid consent
before any procedure
Ensure proper post - operative
care

How to address legally risky patients

Doctors should use caution when treating patients they believe may sue.

Document patient conversations.

Use secure communication.
Build trust.
Be transparent.
Encourage inquires.
Say you're sorry.
Source: The Legal Risk Patient, QuantiaMD, 2011

Orthopedic surgeons are notoriously

variable in their ability to assess and
predict complications in their patients
prior to surgery.
Some surgical procedures are a one way valve
or a river with no end.

Patient understanding of the procedure, his

particular requirements, willingness to co-operate
and follow instructions, his awareness of the
seriousness of the condition, financial and social
status, are all vital points to be considered to ensure
a trouble free and successful outcome.

SAYING NO WHEN IT IS
IMPORTANT
The decision to
say No is
based on the
clinical facts
and
circumstances
of the case.

Treat safe now than to

play safe later

The media has become hyperactive/media trials/string

operations
We are THUS turning into a Law driven society
The medical fraternity therefore needs to be more careful,
alert and vigilant, as it is a soft target.
The need of the hour is to follow the golden rule that a
stitch in time saves nine and it is always better to stay out
of the problem than to get out of the problem.

Patient's belief of "doctor knows best" is changing to

"tell me more.

Hopefully, as orthopedic surgeons we will think more

about how we will answer these demands, rather
than having our answers written for us by external
sociopolitical forces.

The relationship between

Doctor/Hospital and Patients is a
relationship of trust;
Doctors are still known as healers!
There is no real alternative!!
Let not commercialization destroy the
edifice of medical practice!!!
The protection of patient's right shall
not be at the cost of professional
integrity and autonomy

Conclusion
Malpractice is by definition avoidable.
By staying informed and diligent you
reduce the chance of ever being involved
in a claim.

APPEAL
We know our practical problems
better than anyone else. Failure
rate is mentioned in books.
Figures & facts of non union and
complications are there on
internet, even then we cant hold
our tongue. One loose talk may
spoil the whole sport. When
confronted these loose talkers
usually show ignorance about the
whole incidence.
It is the duty of second doctor
to take the patient into
confidence and detail him/her
about the genuineness of the
decision of first doctor to save
the glory of sacred profession.

We all are in the same boat, stop

drilling holes in it.

Please stop criticising your

colleagues in negative tone,
and help making a healthy
environment for healthy
fraternity and good will of the
society.

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