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Knee Replacements Medical Malpractice

Steven E. North, Esq. and Laurence M. Deutsch, Esq.


Demand for total knee replacements is growing — 660,000 are performed each year in the United States. That number is likely to jump to two million annually by 2030, making this complex and expensive operation one of surgery’s biggest potential growth markets.

Currently, Medicare only pays for knee replacements performed in a hospital, although such replacements are being performed successfully at outpatient surgery centers. If Medicare provided reimbursements for outpatient knee replacements, it could save hundreds of millions of dollars by eliminating the costs of hospital stays and other fees associated with in-patient surgery.

There are arguments on each side of the inpatient-outpatient decision, with money as well as patient interests playing a role in the debate. The average hospital stay after knee replacement is 2.5 days, critical some doctors say, because it enables them to watch for clots, bleeding and other possible consequences of the surgery. It also ensures that care is immediately available for older patients who may have weak hearts or other conditions. These risks may be real, but it is also true that losing hospital patients to outpatient facilities will decrease revenue for and physicians.

One CEO of an outpatient surgical procedure interviewed by The New York Times says that his facility has performed knee replacement surgery on hundreds of elderly people, with a low complication rate and extremely high satisfaction rate despite the fact that they do not stay more than 24 hours. And yet many doctors believe that early discharge from a hospital could be problematic, resulting in more protracted hospitalization, especially if sufficient support mechanisms are not in place at home.

It does not seem wise to “play it safe” and insist that all patients remain in the hospital post-surgery out of the fear that a medical malpractice lawsuit will be started or that prolonged hospitalization will occur. And even if there were an errant premature discharge of a patient, the cost associated with that claim would seemingly not justify spending hundreds of millions of dollars to keep patients in the hospital just to protect against such an occurrence.

Source: NY Times, “Paying for Knees,”