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The Rapid Growth of APPs and Burgeoning Risk for MPL

Wednesday, March 6, 2024, 11:00 a.m. ET
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Federal Administrative Actions Impact MPL

While medical liability-related legislative activity has shifted heavily from the federal environment to the states, the same cannot be said for all regulatory activity. Thanks to the McCarran-Ferguson Act, states remain the dominant focus of regulatory matters affecting medical liability insurance.

The State of the MPL Market: Claim Severity Rises, Policy Price Increases Moderate

Every six months, the MPL Association’s Research and Analytics Department issues a report analyzing these metrics with valuable take-aways that offer industry stakeholders insights into the industry’s financial performance.  

Inside Medical Liability



Malpractice Case: Could Stronger Post-Op Follow-up Have Prevented This Infection After Knee Replacement?

Quarterly Closed Claim Study from The Doctors Company with David L. Feldman, MD, Chief Medical Officer

By David L. Feldman, MD, MBA and Jacqueline Ross, PhD, RN

Delayed diagnosis of a joint infection after a total knee replacement led to this patient’s bone loss and leg length discrepancy. This case highlights the value of ongoing follow-up beyond a patient’s first post-op appointments.

The patient was in her late 50s with a history of knee pain and osteoarthritis. She saw an orthopedic surgeon, who noted that she had end-stage osteoarthritis and recommended a total knee replacement. The surgery was discussed, along with the risks and benefits. She agreed to proceed with a complex primary total knee replacement, which was uneventful. Three months postoperatively, the patient was progressing well, and the surgeon requested that the patient return in three months. However, she did not return for more than a year.

When the patient did return, she had complaints of pain and swelling in the knee. On exam, the surgeon noted 4+ knee effusion, but no other signs of infection. The surgeon did an aspiration of the knee and sent the turbid fluid for a culture. The surgeon had talked to an infectious disease doctor, who had recommended doing a fungal and acid-fast bacilli smear culture and sensitivity on this fluid—tests were later negative for both. The surgeon also ordered a triple-phase bone scan. Lab results showed a within-normal white blood cell count (WBC), but elevated sedimentation rate and C-reactive protein (CRP). An x-ray of the knee showed medial/lateral bony erosion, but no significant loosening.

About 10 to 14 days after being seen back for the knee effusion, the patient had an abscessed tooth extracted by a dentist. The dentist ordered amoxicillin. The patient returned to the orthopedic surgeon two weeks after the extraction. The surgeon noted that the tooth abscess may have possibly seeded a low-grade knee infection. One week later, repeat knee x-rays showed that the erosions were stable. Four months later, the patient came into the office with persistent 4+ knee effusion. A knee x-ray showed more resorption of bone at the medial and lateral tibial plateau and the medial femoral condyle. WBC was elevated at 40k. The orthopedic surgeon did another aspiration of 20 cc bloody fluid. The surgeon planned for a MARS protocol MRI of the knee, which allows improved visualization if tissues are adjacent to implanted metal devices. The surgeon also recommended an open biopsy, but the patient had lost her insurance and declined the open biopsy due to potential difficulty in payment. The recommendation for the open biopsy and the reason for the decline were not documented by the orthopedic surgeon.


Two months later, the patient returned to the surgeon with worsening swelling. The cultures were negative. The CRP and sedimentation rate were elevated slightly. WBC was within normal limits. The surgeon thought the patient had an infected knee and recommended the removal of the prosthetic, the placement of antibiotic cement spacers, a tissue biopsy, and a later implantation. The surgeon encouraged the patient to get a second opinion and suggested that she go to an infectious disease physician. This was the last time the patient was seen by the surgeon. Several weeks later, the patient went to a different surgeon, who aspirated pus from the knee. The cultures were negative. The new surgeon recommended a two-stage reconstruction. The patient also saw an infectious disease physician, who agreed with the need for a reconstruction, which was done a month later. The joint had gross purulence, synovitis, and grew Staph. The patient now has a leg length discrepancy. She must wear lifts in her shoe. Additionally, she has ongoing knee pain.

Tips for Malpractice Risk Reduction: Dr. Feldman’s 3 Ps

  1. Prevent adverse events by following a policy for patients who fail to follow up on postoperative visits. In this claim, the patient was expected to return in three months, but she returned over a year later with pain and swelling. Having a policy in place to contact such patients might have enabled a conversation with the patient regarding the need for examination and possible complications. Those patients who are at a high risk from missing an appointment should also receive a call from the physician. Document any efforts to contact the patient about a missed follow-up appointment.
  2. Preclude malpractice claims by communicating with the patient and family. This patient’s nonadherence may have been influenced by a lack of understanding of potential complications. Infections can be indolent and take over a year to become clinically apparent. Follow-up appointments provide essential opportunities to share information about such complications. It may also help preclude a claim if a patient feels the physician is caring.
  3. Prevail in lawsuits by ensuring that care recommendations and subsequent refusals of care by the patient are documented. The orthopedic surgeon in this case had made earlier recommendations for an open biopsy, but the patient refused to proceed because of the lack of insurance. The surgeon’s lack of documentation made defending care more difficult.

This case example comes from “Hip and Knee Replacements: An Examination of Malpractice Claims Against Orthopedic Surgeons From the Ambulatory and Inpatient Settings,” published by The Doctors Company.

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.

David L. Feldman, MD, MBA, FACS,
is Chief Medical Officer for The Doctors Company and TDC Group.

Jacqueline Ross, PhD, RN, CPAN,
is Coding Director, Department of Patient Safety and Risk Management, for The Doctors Company, part of TDC Group.
“Follow-up appointments provide essential opportunities to share information about such complications. It may also help preclude a claim if a patient feels the physician is caring.”