Hip and Knee Replacements: An Examination of Malpractice Claims Against Orthopedic Surgeons From the Ambulatory and Inpatient Settings

Jacqueline Ross, RN, PhD, Coding Director, Department of Patient Safety and Risk Management

Over 1 million total hip and knee replacements are completed annually in the United States. Dramatic increases are projected for both the total number of procedures and the proportion of procedures performed in the ambulatory setting.

The literature related to malpractice claims comparing inpatient and ambulatory knee and hip replacements has so far been limited. Therefore, the purpose of this novel study was to explore potential differences between the two settings in malpractice claims for surgery.

Study Design

The sample of 453 claims included all closed, coded malpractice claims in The Doctors Company database during the loss years between 2009 and 2019 where an orthopedic surgeon was the primary responsible party and the claim involved hip or knee replacement. The sample was also limited to cases that concerned either improper performance of surgery or the improper management of the patient. Major injury, gender and age of the patient, final diagnosis, location of injury, and contributing factors (risk management issues) were included.


  • The top three major intraoperative injuries were related to an aggravated or worsened preoperative condition, like pain or mobility (19 percent), nerve damage (16 percent), and/or postoperative pain (13 percent).
  • Infections, including nosocomial infections, were more common in the ambulatory setting. One reason may be related to a need for greater compliance with the protocol for antibiotic dosing—individuals having ambulatory procedures often must take the third of three doses at home, and may be less adherent to their medication regimen than their inpatient counterparts.
  • The contributing factors of communication between the patient and provider and patient assessment issues both appeared more frequently in claims deriving from the ambulatory setting. This finding presents an opportunity for practices to consider how they create opportunities for physicians to establish rapport and pursue shared decision making.


For both inpatient and outpatient settings, the study’s findings reinforce the necessity of up-front communication with patients about risks, and reveal how actions taken before surgery can influence outcomes after. Specifically, this study identifies risks related to potential gaps in patient prescreening and patient selection. These findings also emphasize the risk-reduction benefits of engaging in a complete process of patient preoperative optimization, which includes focusing on modifiable risk factors and setting expectations with the patient and family.

Claims against providers in the ambulatory setting, though, were far likelier to involve issues with patient assessment and/or communication. This is perhaps unsurprising, as both may be easier when the patient is hospitalized. Among other modifications, ambulatory providers might consider, during the first few days following a joint replacement, adding a telemedicine visit. This provides an opportunity to assess the patient’s postoperative status, review expectations for recovery, and ensure the patient understands their postoperative plan of care.

Increasing understanding of where breakdowns in pre- and post-procedure patient assessment and communication are occurring can assist providers in evaluating and addressing these gaps as needed in their own practices. Physicians cannot always avoid complications, but effective communication with patients may help to avoid both errors and claims.

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The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.


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