April 01, 2008
5 min read

Surgeon characteristics and medical malpractice: Are orthopedists at risk?

Study finds orthopedists with many claims have lower moral reasoning scores.

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Medical malpractice is a complex, poorly understood phenomenon. Why claims are filed, by which patients, and under what conditions remain vexing questions. Two articles in the literature attempt to isolate physician characteristics that might contribute to malpractice claims being filed against orthopedic surgeons.
B. Sonny Bal, MD, MBA
B. Sonny Bal

Lawrence H. Brenner, JD
Lawrence H. Brenner

The first, Moral Reasoning and Malpractice, addresses the possible relationship between physicians’ moral reasoning and claims rates. The second, Characteristics of Surgeons with High and Low Malpractice Claims Rates, examines two physician groups: those with no claims or a low incidence of claims; and those with a high incidence of claims, some of whom had been terminated from their professional group because of excessive claims incidence.

Both articles confirm several aspects of orthopedic malpractice claims that intuitively appear to contribute to malpractice losses. Among these factors are the amount of time physicians spend communicating with patients, the nature and quality of the physician/patient relationship, and the presence, or at least the appearance, of physician empathy and compassion.

Communication skills

The articles also mention a study that found the communication skills of orthopedic surgeons, defined as the ability to convey important procedural concepts to the patient, is generally lower than that of other medical specialists. The articles also verify the long-standing notion that orthopedic surgeons tend to experience more, though less severe, malpractice claims than other specialists such as obstetrician-gynecologists.

While failures in communication have long been attributed to problems in training and technique, the findings of these articles suggest another, perhaps more troubling source of malpractice claims; namely, deficiencies in physicians’ moral reasoning. To understand this variable, we need to explore the nature of the two studies and the results reported.

In Moral Reasoning and Malpractice, physicians with fewer claims scored higher on a moral reasoning survey than orthopedic surgeons with high claims rates. The moral reasoning survey is a simple, self-administered test that measures the number of “principled responses” to ethical dilemmas posed in the test. Principled responses are defined as responses founded in high-level moral reasoning.

Characteristics of Surgeons with High and Low Malpractice Claims Rates also employs moral reasoning surveys, but it tests other physician characteristics. In total, 427 physicians were examined: 48 orthopedic surgeons, 115 obstetrician-gynecologists, and a mixed group of other surgeons. All physicians were either members of the cooperative of American Physicians, a California-based liability-protection trust, or had been terminated from the trust because of excessive claims. The study deliberately omitted physicians who had experienced moderate claims levels in order to elicit possible differences in physicians’ personal characteristics.

The study found that, among orthopedic surgeons, the completion of a fellowship, belonging to academic clinical faculty, membership in professional societies, education at a domestic versus an overseas medical school, specialty board certification, and group, rather than solo, practice are associated with low rates of claims filing. The study also found that religious affiliation and the presence of a registered nurse in the orthopedic surgeon’s office tend to reduce claims incidence. Among the respondent orthopedic surgeons who completed moral reasoning surveys, high levels of moral reasoning strongly correlated with low claims levels.

Protective barrier

While the two articles present important results, they fail to adequately address why orthopedic surgeons with higher levels of moral reasoning are involved in fewer suits. Certain assumptions can be formulated as to the reasons why higher-level moral reasoning serves as a protective barrier against malpractice claims. For instance, we might assume that personal integrity and morality would necessarily result in fewer unnecessary elective operations where the patient’s well-being is subordinated to the physician’s economic interest.

We might also take for granted that ethically minded physicians would respond more quickly to acute medical emergencies and invest more in thoughtful patient management plans. Additionally, we may assume that morality and communication are linked by the moral desire to involve the patient in the clinical decision-making process and uphold the patient’s right to make his or her own decisions concerning treatment.

Relative morality

The relationship between moral reasoning may, though, be more complex than these assumptions might lead us to believe. Physicians who express a strong religious affiliation may attract patients with similar convictions, thereby propagating a claims-reducing affinity between the two. Do morally minded physicians tend to attract morally minded patients? Does a similar consonance arise between physicians’ and patients’ ethical systems? Does similar moral reasoning contribute to fewer orthopedic malpractice claims? Possibly, the nature of the patient’s morality may be as or more important than the physician’s morality in identifying strategies to reduce malpractice claims levels.

In the final analysis, it is possible that the patients of orthopedic surgeons in the articles cited may have, at some preconscious level, connected with their orthopedic surgeons such that any unhappiness at their outcomes was wholly mitigated by the attachments formed between like-minded agents.

These articles are an excellent starting point in understanding orthopedic malpractice claims. The next logical step would be to conduct a study evaluating the characteristics of patients who file malpractice lawsuits as well as the characteristics of the orthopedic surgeons who were sued. The result of this integrated analysis could serve as a powerful risk management tool.

Case reports

Case One: Scoles v. Mercy Healthcare Co.

In this case Dr. Scoles, an orthopedic surgeon, was HIV-positive. When officials at the hospital where Scoles practiced learned of his status, they conditioned his clinical privileges on his agreeing to inform patients of his status prior to any invasive procedure. Scoles sued the hospital for violation of Section 504 of the Rehabilitation Act of 1973 and Section 101 of Americans with Disabilities Act. The court found the hospital acted reasonably in requiring Scoles to inform his patients of his HIV status prior to performing surgery.

In your opinion, would it have been ethical for Scoles to withhold his HIV status from patient prior an invasive procedure?

Case Two: Hidding v Williams

In Hidding, the patient had undergone a lumbar laminectomy and 12 years later, while on a fishing trip, he developed severe back pain. He consulted the defendant orthopedic surgeon, who diagnosed spinal stenosis after an appropriate work-up. A decompressive lumber laminectomy was performed, after which the patient became incontinent of bowel and bladder functions. He filed a medical malpractice lawsuit alleging, among other things, that the orthopedic surgeon was suffering from recurrent alcohol abuse and that the patient was entitled to know of his history of alcoholism prior to surgery.

In your opinion, was the orthopedic surgeon ethically obligated to disclose his history of alcoholism to the patient?

If it is your opinion that the surgeons in Scoles and Hidding had an obligation to disclose their conditions, would it be your opinion that orthopedic surgeons would also have to disclose if they were suffering from major depression, Parkinson’s disease, severe heart disease, terminal cancer, rheumatoid arthritis, or if they were engaged in the recreational use of marijuana?

For more information:

  • B. Sonny Bal, MD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
  • Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.


  • Adamson TE, Baldwin Jr DC, Sheehan TJ, Oppenberg AA. Characteristics of surgeons with high and low malpractice claims rates. West J Med. 1997;166(1):37-44.
  • Baldwin Jr DC, Adamson TE, Self DJ, et al. Moral reasoning and malpractice. A pilot study of orthopedic surgeons. Am J Orthop. 1996;25(7):481-484.