Most physicians will face at least one medical malpractice case in their career and surgical subspecialties face one of the highest risk of malpractice claims. In fact, nearly 40% of responding members of the American Society for Surgery of the Hand reported being sued for malpractice for hand surgery at some point in their career.

Literature on medical malpractice in hand surgery is sparse, especially from the U.S. One U.S.-based study on hand surgery litigation analyzed all malpractice claims from 2001 to 2009 involving finger and hand replantation at Bellevue Hospital Medical Center in New York. Of the 23 claims filed, only one plaintiff received a small financial settlement. The others were dropped. More than half (56.5%), stemmed from the surgeon’s decision not to replant an amputated digit.

On the whole, medical malpractice claims, including hand and other specialties, increased from 1989 through 2009, but then declined and plateaued. The decline may be due to tort reform legislation in the early 2000s that increased barriers to filing, capped damage awards and changed payouts from lump sum settlements to payments over time.

A study published in Plastic & Reconstructive Surgery in October 2020 detailed the results of cases involving medical malpractice and hand surgery from Thomson Reuters’ Westlaw database. Westlaw contains court documents from more than 40,000 U.S. legal databases, but reporting is optional and at the discretion of individual judges and court systems. However, it does provide the following key highlights about hand surgery medical malpractice cases:

The Impact of Subspeciality Certification

An analysis of 430 surgical or medical malpractice cases of hand, wrist and soft tissue conditions of the upper extremity between 1989 and 2019 found that cases involving surgeons without subspecialty certification in hand surgery were significantly more likely to receive verdicts that favor the plaintiff (27% versus 7%).

The Most Common Diagnosis and Allegations

The most common diagnoses in court cases were distal radius fractures (21%), carpal tunnel syndrome (14%) and tendon lacerations (6%). The most common malpractice allegations were failure to diagnose/treat (34%), surgical negligence (29%) and improper procedure/treatment (19%) and lack of informed consent (5%)

Nearly half (46%) of plaintiffs said they required additional surgery as the result of their initial treatment.

The Most Common Surgical Specialty Sued

Physicians were named as codefendants in 93% of cases, hospitals or medical practices in 46% and physician assistants in 2%. Certified registered nurse anesthetists, nurses, therapists, laboratories, hardware manufacturers, and others were named in less than one percent each. The physicians listed as codefendants come from 15 specialties including orthopedic surgery (54%), plastic surgery (14%), emergency medicine (8%) and general surgery (4.5%).

Trial Outcomes

Defendants won 75% of trials with no payout, a much higher percentage than trial wins for facial plastic surgery (62.5%) and general orthopedics (61.7%). Plaintiffs won in 25% of trials with payouts ranging from $3,500 to $11,400,000 (mean $832,258). Eight percent of cases settled with amounts ranging from $3,000 to $6,550,000 (mean $551,957). Board-certified hand specialists were involved in a minority of cases and more likely than any other physician to have successful defenses.

Payout by Diagnosis

The highest mean trial payouts were for treatment of cubital tunnel syndrome ($3.4 million per case), crush/degloving/major trauma injuries ($2.6 million per case), abscesses ($2.4 million) and scaphoid fractures ($2 million per case).

Case Type Most Likely to Be Won by Plaintiff

Plaintiff verdicts were more likely for cases that were infectious (47%) and oncologic (43%) compared to elective (31%) or trauma (20%).

Meanwhile in Europe, medical malpractice information for hand surgery information is more readily available. For instance, a 2010 study from Britain analyzed claims of medical negligence in hand and wrist surgery between 1995 and 2001 and found that 56% of claims related to surgical errors. What’s more, wrist fractures and carpal tunnel syndrome accounted for the largest percentage of claims, 48% and 22%.

A 2010 litigation claims review in the UK from 2000 to 2006 against all orthopedic surgeons and a subgroup analysis found 69 cases were related to hand and wrist surgery, with 39 specifically involving laceration of the median nerve during carpal tunnel release.

A 2010 study of all hand and wrist malpractice claims in the Netherlands between 1993 and 2007 from MediRisk (which covers 90% of hospitals there) found that general surgeons were the most commonly involved in litigation pertaining to hand surgery and the must common condition in litigation was wrist fracture.

The Journal of Hand Surgery offers the following tips for surgeons to avoid issues with medical malpractice:

    • Avoid blatant mistakes (i.e. wrong site surgeries)
    • Be honest with your patients and keep them informed
    • Tell patients about all possible complications during a surgery, no matter how unlikely
    • Develop a strong relationship with patients and their families
    • Document meticulously

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