The Malpractice Experience of Orthopedic Surgeons 2011 to 2021: Patient Selection and Communication May Mitigate Risk of Claims

Jacqueline Ross, RN, PhD, Coding Director, and Eric E. Cleckler, MSN, RN, Patient Safety Risk Manager II, Department of Patient Safety and Risk Management, The Doctors Company, Part of TDC Group

Even as orthopedic surgery is transformed through technological innovations, surgeons who continue to devote their attention to familiar clinical concerns like patient selection and the thorough communication of known risks will be rewarded with risk mitigation.

Study Design

This study analyzed 1559 closed medical malpractice claims and suits (814 ambulatory, 745 inpatient) from the loss years of 2011 to 2021 in which orthopedic surgeons were the major responsible service.


  • Dominant case types included improper performance of surgery, improper management of surgical patient, and diagnosis-related concerns. Among these case types, some were more numerous, whereas some were more likely to settle:
    • 44% (n=680) Improper performance of surgery emphasizes the technical aspects of the procedure. Twenty-three percent of the studied claims of this case type resulted in a settlement.
    • 31% (n=478) Improper management of a surgical patient incorporates the management of the patient along the surgical continuum of care (preoperative, intraoperative, and postoperative phases). Twenty-eight percent of the studied claims of this case type resulted in a settlement.
    • 7% (n=104) Diagnosis-related allegations comprise events like misdiagnoses leading to unnecessary surgeries; missed findings on histories and physicals leading to delayed diagnoses; misreads of diagnostic tests; delays in ordering or completing diagnostic tests; abnormal test results with no follow-up; or incidental findings overlooked. The top diagnostic failures in this study involved fractures, compartment syndrome (typically posttraumatic), and cancer. Forty-one percent of these case types resulted in a settlement.
  • The top major injuries included nerve damage, infection, and pain. The clinical summaries revealed general themes for these injuries, with some differences between settled and dismissed claims. For instance:
    • Nerve damage: Among settled nerve damage claims, often the patient sustained a high-severity injury. Many procedures involved poor technique, or there was a delay in diagnosis of cauda equina, or the surgery was not indicated. Dismissed nerve damage claims frequently involved a known complication.
    • Infections: In settled claims, the infections were deep-seated. The patient frequently required hospitalization and additional surgery. In dismissed claims, on the other hand, the infections were more superficial. Dismissed claims sometimes also involved patient nonadherence.
    • Pain: Settled pain claims involved pain that was severe and disabling. In dismissed pain claims, the pain was nondisabling, and it often resolved after therapy, or the patient had similar pain that was preexisting.
  • Prominent contributing factors included selection and management of therapy (18 percent of studied claims; n=276) and communication between the provider and the patient/family (19 percent of studied claims; n=305). Together, these findings emphasize the importance of patient selection and thorough communication regarding expectations.


At The Doctors Company, guided by our mission to advance, protect, and reward the practice of good medicine, we analyze the claims experience of our members, translating those findings into patient safety insights to help medical professionals pursue best practices for risk mitigation.

Download Full Study

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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