A 23-Year Analysis of the Litigation in Orthopaedic Elbow Surgery

Emmanuel Brito; Nathan Sherman; Andrew P Mahoney

doi:10.1016/j.jse.2024.03.012

A 23-Year Analysis of the Litigation in Orthopaedic Elbow Surgery

J Shoulder Elbow Surg. 2024 Apr 15:S1058-2746(24)00259-3. doi: 10.1016/j.jse.2024.03.012. Online ahead of print.

Authors

Emmanuel Brito¹, Nathan Sherman², Andrew P Mahoney³

Affiliations

¹ University of California Riverside, School of Medicine, Riverside, CA, USA. Electronic address: ebrit008@ucr.edu.
² Department of Orthopaedic Surgery, University of Arizona, Tucson, AZ, USA.
³ Tucson Orthopaedic Institute, Tucson, AZ, USA.

PMID: 38631456
DOI: 10.1016/j.jse.2024.03.012

Abstract

Background: The reasons for malpractice litigation in elbow surgery are not well understood. The aim of this study is to report the most frequently litigated surgeries of the elbow and analyze the reasons for litigation and case outcomes.

Methods: A retrospective review of the Westlaw legal database was performed, and all federal and state jurisdiction litigation cases involving the elbow from 2000-2023 were queried. Cases were excluded if they did not involve an orthopedic surgeon, nor primary elbow injury or procedure. Cases were reviewed for demographic information, surgical procedure based on reference CPT codes, complications, symptoms, and reasons for litigation. Quantitative information, including settlement and indemnity cost to the defendant orthopedic surgeon, was analyzed. Cases were sub-divided based on United States Census Bureau regions and states to assess regional frequency of litigation with ANOVA tests.

Results: There were 59 cases meeting inclusion criteria from 2000-2023.The most litigated cases involved were ulnar nerve transposition/release and open reduction and internal fixation of the proximal radius and/or ulna at the elbow. The most litigated complication was claimed nerve damage (46%) and permanent disability (27%). Of the total cases, the most frequently litigated symptoms were nerve damage (46%) and loss of function (37%), while the least frequent was postoperative stiffness (2%). The Pacific region demonstrated the highest litigation rate (20%), while the East South Central, Mountain, and New England regions had the lowest litigation rate (3% each). A favorable verdict was given to the defendant orthopedic surgeon in 59% of the cases. The average loss incurred through settlement was $245,590, while the average indemnity paid through verdict was $523,334.

Conclusion: Operative fixation of the proximal ulna/radius and ulnar nerve release/transposition are the most litigated procedures of the elbow. Litigation is most associated with nerve injury. Across Census Bureau regions, there is no significant difference in monetary cost incurred through settlements and verdict losses. Although a majority of litigated cases are won by the defending orthopedic surgeon, thorough informed consent and perioperative expectation management may mitigate litigation risk.

Keywords: Elbow; Litigation; Malpractice; Orthopedic; Settlement.