What We Learn From Postoperative Malpractice Claims

May 3, 2023

By Lori Atkinson, RN, BSN, CPHRM, CPPS, Constellation Content Manager, Risk and Patient Safety Expert, and Kelly Rinehart, RN, BSN, Independent Risk Management and Patient Safety Consultant

Improper postoperative management of a surgical patient

During a follow-up spinal surgery, a surgeon removed a 51-year-old man’s existing spinal hardware and performed a lumbar spinal fusion. The evening following surgery, the man developed mild bilateral leg weakness; his nurse contacted the on-call surgical resident, who ordered her to continue monitoring the patient. The man developed complete bilateral leg weakness overnight, and the night-shift nurse called the on-call resident to provide an update on the change in condition. The resident ordered monitoring and chose not to come in to examine the patient.

The following morning, the on-call resident notified the surgeon, who then examined the patient and noted no motor function in either leg. He took the patient back to the operating room and evacuated a hematoma. Due to the hematoma pressing on the nerve, the man suffered permanent nerve damage, which resulted in disability with bowel and bladder dysfunction. The man filed a malpractice claim against the surgeon and the hospital, alleging improper postoperative (post-op) management. The case was closed with payment to the patient on behalf of the surgeon and the hospital’s nursing team.

Top allegations in surgical claims

In our analysis of Constellation malpractice claims, surgical allegations are number one in occurrence and tied for number two in cost with diagnostic errors.

Surgical allegations fall mainly into two categories: surgical performance issues and surgical patient management issues.

Orthopedic and general surgery care teams are the most frequently involved responsible clinicians in surgical harm events.

Constellation Claims Reviewed 12/31/2021
The top factors contributing to postoperative harm

Contributing factors are the risk management issues that contribute to a harm event (or malpractice claim) and are amenable to risk mitigation strategies. Most harm events involve multiple contributing factors.

Nearly half (40%) of surgical patient management claims involve technical skill issues, including known procedural risks. Over half (56%) involve patient assessment issues, and 23% include communication breakdowns among the surgical team. These claims highlight the gaps in post-op assessment and monitoring for known complications of a procedure, as well as communication challenges.

Post-op patient management claims are driven by:

  • Patient assessment failures
  • Hierarchical and handoff communication challenges
  • Lack of a strong safety culture where nursing teams are empowered to speak up about a patient concern
  • Postoperative discharge instructions and communication failures

The claim above illustrates the post-op communication challenges that can happen among the surgical team, ultimately leading to patient harm.

One claim can have more than one contributing factor
Constellation Claims Reviewed 12/31/2021
Kelly Rinehart, Independent Risk Management and Patient Safety Consultant
Risk strategies for surgical teams

  • Implement surgery-specific handoff communication processes and tools for clinicians and nursing teams (e.g., SBAR and IPASS).
  • Utilize an escalation policy (chain of command) when clinicians are unresponsive to nursing team requests to examine a post-op patient due to deterioration or a change in condition.
  • Employ simulation techniques for nursing team training in effective communication, handoffs, post-op assessment/monitoring and critical events.
  • Foster a safety culture in the surgical department where every team member feels comfortable speaking up when they see a patient safety issue.

Be sure to watch our on-demand video, Improving Care and Communication Postoperatively, to learn more about mitigating post-op harm events and how you can improve your surgical team’s performance.

Risk reports

Our risk reports analyze Constellation’s malpractice claim data on a variety of topics and specialties and share insights to help reduce harm events and malpractice claims. We have three surgery-related risk reports: Anesthesia, Surgery, and Orthopedic Surgery.

Are you a Constellation client? Sign in to MyAccount to access exclusive customer versions of our risk reports. The expanded reports share actionable insights and strategies that you can utilize to help reduce harm events and malpractice claims. After you sign in, follow Risk Resources > Tools & Resources > Publications > Risk Reports. You also have access to a host of Bundled Solutions (in Risk Resources) that cover a wide variety of topics—such as surgery—to assist you in your risk mitigation efforts.

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