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Orthopaedics and the Law

Dr. Suk is Assistant Professor, University of Florida College of Medicine, and Director, Orthopaedic Trauma Service, Shands Medical Center, Jacksonville, FL. Ms. Udale is Attorney, Nutter, McClennen & Fish, LLP, Boston, MA. Dr. Helfet is Professor, Weill College of Medicine at Cornell University, and Director, Orthopaedic Trauma Service, Hospital for Special Surgery, New York, NY.

None of the following authors or the departments with which they are affiliated has received anything of value from or owns stock in a commercial company or institution related directly or indirectly to the subject of this article: Dr. Suk, Ms. Udale, and Dr. Helfet.

Reprint requests: Dr. Suk, University of Florida – Shands Jacksonville, ACC Building, 2nd Floor/Ortho, 655 West Eighth Street, Jacksonville, FL 32209.

Understanding the relevant legal context is critical to the safe and successful practice of orthopaedic surgery. Specifically, three areas of liability are relevant to most physicians: medical malpractice, products liability, and the liability of health care organizations. Medical malpractice encompasses the professional physician-patient relationship with its implied contract, consent, fiduciary responsibilities, and duty to provide the standard of care, as well as certain common-law duties pertinent in special circumstances. Orthopaedic surgeons who design implants or who have a relationship with a device manufacturer are at risk for liability for a failed product. In general, the hospital entity is responsible for the actions of its physician-employees. Still unclear is the degree to which a physician is obligated to appeal to a third-party payor on behalf of a patient. Physicians should remember that, above all else, common sense with regard to the treatment, informed consent, and advocacy of patients is essential to avoiding many medical-legal pitfalls.