Complaints to regulators drive orthopaedic surgeons’ medico-legal matters

Jan 23, 2017

Why do orthopaedic surgeons seek Avant’s support? Our data provides some clues and our experts provide insight into which matters are becoming more prevalent and why.

Avant has more than 70,000 members and insures more than half of all doctors in Australia. Our scale means we handle a broad range of medico-legal matters across the country and have extensive claims data to draw upon. Our scope of work allows us to attract the very best medico-legal experts across every relevant matter of law and jurisdiction and offer our members unparalleled defence. Looking at the new cases managed in the 2015–16 financial year highlights the different challenges doctors face across each specialty. Here we look at your area of practice and highlight the matters we have helped our members with last year.

Claims for orthopaedic surgeons have increased 16% over the average of the previous three years. The number of orthopaedic surgeons members has increased over the last four years, however we have accounted for this by looking at cases per 1,000 members.

Orthopaedic surgeons mostly face matters relating to complaints to regulators and claims for compensation. The former, however, is the highest frequency for any specialty apart from plastic surgeons.

orthopaedic claims

Complaints to regulators on top

Complaints to regulators are up 11% and are at the highest we’ve seen in four years. This is consistent across the board for medical professionals and symptomatic of many and varied factors. Andrew Vandervord, Practice Manager, Legal Professional Conduct NSW at Avant Law, believes there are a number of factors that may be influencing the rise in complaints to regulators. He cites the ease with which patients can make complaints as a factor as patients can now make a complaint online in all states and territories.

As we know, the practice of medicine has inherent risks. Complications arising from surgery and delays in diagnosing any complications can result in complaints to regulators. An example of this is succinctly explained in recent scenario a member of ours was involved in. The orthopaedic surgeon had performed a total hip arthroplasty on a patient where a drain was used. On removal, fragments were left in the wound requiring surgical removal.

Patients not fully understanding risks, or feeling as though they haven’t been explained but then materialise, is another common feature of complaints to regulators. The NSW Health Care Complaints Commission noted in its 2016 Annual Report, ‘although clinical care remains the largest allegation category, complaints about doctor-patient communication have increased more significantly than other categories, highlighting the importance of the doctor-patient relationship’. The Avant Learning Centre has resources to help you protect your practice, reduce exposure to risks, and achieve better outcomes for patients including plenty of tips and advice on improving communication. Read more on patient consent and discussing material risk further down.

orthopaedic claims

Compensation claims still common

Compensation claims are still a very common issue with which the Avant medical defence team are assisting orthopaedic surgeon members. Compensation claims against orthopaedic surgeons (40% of claims) is second to only plastic surgeons (45%).

Dr Joe Lizzio, Senior Medical Advisor, Avant, said that in respect to civil claims for compensation, orthopaedic surgeons are generally good at explaining the risks and complications of surgery to the patient. Many orthopaedic surgeons use models and diagrams to help explain the procedure to the patient and give the patient handouts.

“The trouble is that many orthopaedic surgeon members inform us that they have not kept a copy of the model or diagram, or a record of the version of the handout they gave to the patient in their medical records,” he said. “Many surgeons rely on their letter to the referring doctor as their documentation of the consultation. However, if a claim eventuates it can be very difficult to confirm that the patient received a copy of the diagram or handout, or that a model was used, if it was not documented,” he warned.

“Therefore, if you use a model or diagram during a consultation or give the patient a handout, it’s very important to indicate this in the letter to the referring doctor,” Dr Lizzio reminded orthopaedic surgeons.

As with complaints to regulators, compensation claims about a complication of treatment that had not been mentioned or fully understood, but then materialised, are common. When obtaining a patient’s consent to undertake various therapeutic actions, medical practitioners have a duty to provide the patient with sufficient information about the material risks of a procedure, or treatment, to enable the patient to make an informed decision about whether to undergo the procedure or treatment. For more on patient consent and material risk see Consent essentials on the Avant website.

Effective communication between you and your patients is central to the consent process. In our five-minute video Jo Montgomery, Senior Risk Manager at Avant, provides recommendations about clinical and legal responsibilities when gaining consent and discussing material risk. She says that there is a significant onus on doctors to know their patients when it comes to discussing material risk. ‘Take the time to gain rapport with your patients to ascertain what is important to them. Asking patients, “What is the one thing you’re worried about?” and other similar open questions will help you in identifying risks material to the patient,’ she says. Contemporaneous notes should always accompany discussions about treatments and these should cover all aspects of the consent discussion such as:

  • benefit and potential complications of procedures
  • the risks and the alternative treatment options you discuss
  • any questions the patient raised.

‘In the event of a complication or adverse outcome of which the patient has been warned, the patient is much more likely to accept the consequences and less likely to litigate or complain if they had a good understanding of the risks involve,’ she concludes.

Employment issues on the rise

Although still relatively low, the frequency of employment matters increased 57% last year in comparison with the average of the previous three years, making employment disputes the fastest growing type of matter for orthopaedic surgeons.

In the latest edition of Connect magazine, our experts cite contracts and disputes with colleagues as two of the most common issues. Sonya Black, Avant Special Counsel Employment, points out that one increasing trend is employers suspending and reporting doctors, ‘in the past, many employers managed less-serious or ‘one-off’ employment issues with the doctor … There is a trend now for hospitals and other employers to commence a formal disciplinary process, even where the issue is minor’.

At some time in your career you may be asked to attend a meeting with your employer as part of an investigation, disciplinary, performance management or other employment process. Watch this short video to understand your rights and what to expect.

The Avant Learning Centre also has a range of resources to help doctors manage disagreements and conflict within the workplace. Performance management - tips and traps is a training tool for supervisors or read our article Navigating uncomfortable situations with your supervisor for strategies to manage difficult discussions including links to further training.

For more information on these matters please visit the Avant Learning Centre or, if you require immediate advice contact the Avant Medico-legal Advisory Service on 1800 128 268.

Share your view

We welcome your feedback on this article – email the Editor at: editor@avant.org.au