Not surprisingly, orthopedists were the most frequently named specialty in fracture-related malpractice lawsuits, according to the authors of an analysis of claims occurring from 1988 to 2015.1
While 88% of the 201 lawsuits included in the analysis named orthopedists, EPs were defendants in eight cases. “EPs are certainly at risk, due to the fact that they are on the frontlines when these patients come in,” says Alan H. Daniels, MD, one of the study’s authors and an assistant professor of orthopaedic surgery at Brown University’s The Warren Alpert Medical School.
Researchers used “orthopedic” as one of the search terms in the medicolegal database. Thus, relatively few cases naming EPs were identified. “We likely could perform additional studies looking just for emergency physicians, and find many more with similar findings,” Daniels offers.
Often, trauma patients are left with permanent disability and inability to work. “Essentially, they are looking for someone to blame, hold accountable, and help with their finances. They will often do that with lawsuits,” Daniels observes.
Even if an EP was not directly responsible for the bad outcome, a plaintiff may be able to apportion some blame onto the EP. “The paper’s data show that people with neurological injuries are more likely to sue and win in court,” Daniels reports. He says this finding underscores the importance of handling these tasks immediately if ED patients appear to exhibit any type of neurological deficit or vascular injury:
• Obtain appropriate imaging. This includes an X-ray of the fractured bone, including the joint above and below. “Consider CT angiography if there is vascular injury, but don’t delay orthopedic and vascular surgery consultation to get it,” Daniels advises.
• Obtain appropriate consultation from whatever services are necessary. “Get rapid orthopedic and vascular surgery consults if there is concern for vascular injury,” Daniels says.
• If consultation is unavailable, transfer the patient to a facility where it is available. “Stabilizing the fracture with splinting is always an essential first step, whether the patient has a neurological or vascular injury or not,” Daniels adds.
Failure to diagnose a fracture is the most common allegation in ED malpractice claims related to orthopedic injury, says Jill M. Steinberg, JD, a shareholder at Memphis, TN-based Baker Donelson.
Many of these claims share similar fact patterns. Typically, someone visits an ED after a fall or other injury, and one of two things happens: Someone performs an X-ray of the affected bone, or someone performs an X-ray, but the EP misses the fracture.
The radiologist’s overread, conducted the following day, becomes a central issue in the resulting malpractice claim. The plaintiff can prove the EP missed the fracture during the first read. By the time the radiologist identifies the fracture, the patient has been discharged.
Steinberg says two practices, if performed consistently, can help prevent malpractice lawsuits:
- The radiologist should communicate directly to the EP who ordered the test;
- The EP who ordered the test should take responsibility for notifying the patient personally.
Busy EPs often rely on hospital staff to handle this important latter task. “We have had cases where messages were left on answering machines that were not picked up,” Steinberg recalls.
Sometimes, the hospital employee who originally called the patient goes off shift. The oncoming shift does not realize nobody ever contacted the patient successfully. Thus, the patient never receives a proper notification about the fracture.
- Ahmed SA, DeFroda SF, Naqvi SJ, et al. Malpractice litigation following traumatic fracture. J Bone Joint Surg Am 2019;101:e27.