Orthopaedic surgery is a specialty dealing with a wide range of musculoskeletal conditions. Frequently performed procedures include joint replacements, arthroscopies and spinal surgery. Serious complications following surgery are rare, but medicolegal cases may arise due to the life-changing impact they can have on mobility and function.
The majority of cases reported to us relate to elective surgical procedures undertaken outside of the NHS. Patients who opt for elective surgery can choose to proceed with it at any time, or not at all. The management of acute fractures and trauma is most commonly undertaken in the NHS setting.
Clinical negligence claims in orthopaedic surgery can sometimes lead to large financial settlements. The value of the settled claim will often include compensation for care and loss of earnings, in addition to an award for the damages resulting from a breach of duty. Complications can result in permanent damage or significant loss of function and this sees the value of claims vary enormously. Our highest orthopaedic surgery total case payment (claimant damages, costs and legal costs) is well in excess of £3.6 million.
We understand you work in complex and often pressured environments. We also know, following feedback from members, that experiencing a medicolegal case can be incredibly stressful. At Medical Protection we want to share our knowledge, experience and expertise with you so we can provide invaluable professional support.
We’ve analysed the support we provided UK-based orthopaedic surgery members in more than 1,800 cases. In addition to advising and assisting in writing medical reports in nearly 600 of these cases, we have supported members in relation to more than 1,200:
- Claims, as in demands for monetary compensation that embodies allegations of negligence
- Preclaims, which are intimations from a claimant of a possible claim for compensation
- General Medical Council (GMC) investigations
- Local disciplinary procedures
We have studied all claims including those defended, not pursued and settled. We feel sharing our learnings about why patients decide to take action – and the reasons why claims are settled – is valuable.
Claims: Procedure and contributory factors
The highest number of claims related to knee surgery. The most common procedures and contribution factors were:
- Total knee replacement, including malposition of components.
- Knee arthroscopy, including poor surgical technique causing iatrogenic damage.
- Interior cruciate ligament reconstruction, including graft failure.
When consent was found to be inadequate, the most common factors were a failure to offer conservative management as an option or to explain the limitations of the proposed procedure.
Our highest knee surgery total case payment was in excess of £550,000.
Read our case study "A problematic knee replacement" here
The second most frequent procedures leading to claims were in relation to hip surgery. Elective hip replacements and revision surgery were common procedures in our data. The contributing factors included selection of the wrong sized components, malposition of components and a failure to perform or correctly interpret postoperative x-rays.
Alleged negligent outcomes included leg length discrepancy, restriction of mobility, nerve damage, infection or dislocation. Many patients who claimed had required additional correction surgery.
Of the claims settled on behalf of Medical Protection members, the highest total payment was in excess of £300,000.
Metal on metal hips
In some cases, a product liability claim had been brought against the manufacturer. Allegations directed at Medical Protection members included ‘mixing and matching’ of components from different manufacturers. This sometimes led to increased metallosis or accumulation of metal debris in soft tissues. The contributing factors leading to claims were failing to review patients, failure to monitor metal levels in the blood, failure to perform imaging and failure to offer revision surgery in a timely manner.
In our analysis, spinal surgery procedures were undertaken by either neurosurgeons or orthopaedic surgeons. Orthopaedic surgeons who perform spinal procedures are required to pay a different subscription rate to Medical Protection. Where the surgery was performed by an orthopaedic specialist, claims often related to lumbar nerve root decompression or spinal fusion. Common allegations in the claims were that the choice of procedure was incorrect, and that metalwork was misplaced or the surgical technique was poor.
The consequences for the patients were either ongoing symptoms of pain and weakness, or development of new, more troublesome symptoms, including bladder and bowel incontinence. In some cases, wrong level surgery was undertaken. Many claimants required additional surgery. The highest total claim payment in relation to spinal surgery was in excess of £3.6m.
When consent was found to be inadequate, the most common factors were a failure to explain that symptoms may not improve or may even get worse. While failure to offer conservative management as an option was also a common factor. The Getting It Right First Time (GIRFT)
report on spinal services produced in January 2019, supports the notion that a lack of fully informed consent played a role in many claims.
The British Association of Spinal Surgeons (BASS) has produced guidance on satisfactory consent for spinal procedures. You can read it here.
A number of claims were made in relation to hand surgery. We found the most common were when trigger finger release, Dupuytren’s contracture release, ganglion excision and carpal tunnel surgery were performed in a one-stop setting. The discussion and consent for the procedure and the surgery itself took place on the same day.
Claims were settled on the basis of a failure to discuss the available options. In some circumstances the operating surgeon had made the incorrect assumption that conservative management had already been discussed with the patient by the referring clinician, usually a GP. In addition, allegations were made in relation to poor surgical technique resulting in consequences such as nerve injury, leading to loss of function of the hand.
Several claims were made in relation to hallux valgus correction surgery. These included tendon and nerve damage resulting in complex regional pain syndrome and abnormal gait. When consent was found to be inadequate, the most common factors were that the risks of chronic pain and/or neuropathic pain were not discussed before surgery.
In our analysis, there were claims of missed fractures around total hip prostheses. Some of these occurred following falls in private hospital shortly after joint replacement surgery. In some claims the orthopaedic surgeon did not adequately examine the patient or arrange further imaging after the fall or prior to discharge. In other claims, the nursing care or the assessment by the resident medical officer following the fall were deemed to be inadequate.
Patient Complaints: Common Themes
We have analysed the complaints where we’ve supported orthopaedic surgeons, including complaints from NHS and private practice. These were quite varied and sometimes related to multiple concerns. Most of the complaints were from patients, but some were from other healthcare professionals.
The common themes were:
- Inaccurate completion of medicolegal reports, for example in relation to personal injury compensation claims.
- Development of pressure sores postoperatively.
- Inappropriate examination of patients.
- Dismissive attitude during consultations.
- Delay in organising further care such as physiotherapy.
- Failure to inform patients of investigation results.
Regulatory and Disciplinary Investigations: Common Themes
We are aware of the immense pressure and stress that many doctors go through during these investigations. We always aim to provide members with tailored care and expert support.
GMC cases have followed referral from patients, relatives or colleagues, both senior and junior. There was a mix of clinical and non-clinical concerns. Some investigations relate to more than one concern or a series of serious clinical incidents. The common themes were:
- Allegations of poor surgical competence, including higher than expected complication rates, poor functional outcomes or lack of experience and technical ability for the operations being performed.
- Manner and attitude towards colleagues and patients, including poor communication with patients and relatives when surgery is delayed or cancelled.
- Bullying and harassment, including inappropriate behaviour of a sexual nature. As well as alleged assault of colleagues, including displays of anger such as throwing instruments at other theatre staff.
- Failure to supervise junior staff in theatre.
- Poor postoperative management of complications, including management of wound and prosthetic joint infections.
- Allegations of theft of equipment from the hospital.
- Failure to attend when requested while on-call.
- Performing private work during NHS time or using NHS resources, to do so, including secretarial resources.
- Health matters, such as alcohol and drug misuse.
- Probity issues, including fraudulent use of codes when billing in private practice or authorship of publications.
- Criminal convictions arising from the surgeon’s personal life.
- Use of experimental joint replacement prostheses without adequate informed consent or governance.
Inquests: Common themes
We assisted members in writing statements and attending coroners’ inquests. An inquest is a fact-finding exercise that is conducted by the coroner and, in some cases, in front of a jury.
The purpose of an inquest is to find out who died, when, where, how and in what circumstances. Our inquest factsheet contains further information about what happens at an inquest.
We identified the following themes of an inquest:
- Postoperative deaths due to pulmonary embolism. In some cases where postoperative prophylactic anticoagulation had not been provided or had been stopped due to bleeding from the surgical incision.
- Other complications including sepsis, bowel ischaemia or obstruction and haemorrhage.
Orthopaedic surgery in the UK: Top tips to minimise risk
Please note this is not an exhaustive list of recommendations, but key learning points from our analysis:
- Ensure your surgical technique is regularly updated and in line with current best practice.
- Discuss the possible benefits and risks of all potential surgical or conservative treatment options. Consider what is most important to that individual, taking into account their current employment and lifestyle.
- Listen to what your patient considers a successful outcome. Understand their concerns and expectations and clarify whether they can be met.
- Explain frequent and serious complications, including the possibility of chronic pain, and the implications if these occurred. Explain what you would do to manage any complications or failure to meet their expectations. Document these discussions.
- Never pressure or rush patients into giving consent to have surgery, for example, by introducing special offers for a limited time only, or any discounted price.
- For elective operations always leave sufficient time, at least a week for example, after the consultation before scheduling the procedure. This gives the patient time to consider their options thoroughly, to talk to their family or access more information and ask questions.
- Remember consent is a process and not simply a signature on a form.
- Do not assume that another practitioner, who may have reviewed the patient before your consultation has had an informed discussion with the patient about all the options.
- Where costs are involved, your patients should be given clear information about ALL the costs and what their rights are to refunds/return of deposits, if they change their mind after they’ve paid some or all of the costs.
- Double-check your patient’s understanding of the information and make sure decisions have been accurately informed.
- Ensure a perioperative management plan is in place, including assessment of venous thromboembolism risk.
- At discharge, review the requirement for ongoing anticoagulant as necessary.
- Ensure any postoperative deterioration, complication or falls are communicated, investigated and managed in a timely and appropriate fashion.
- Consider the Medicines and Healthcare products Regulatory Agency guidance when following up on patients with metal on metal hip replacements.
- Demonstrate empathy in your consultations and show your patients that they are the focus of your attention.
- Remember that accurate and clear documentation is the cornerstone of any medicolegal defence. It’s often relied upon years after the event.
- Ensure you’re fully indemnified to carry out the relevant procedure in the UK.
Workshops and Masterclasses from Medical Protection
- Mastering Adverse Outcomes
- Mastering Difficult Interactions with Patients
- Mastering Professional Interactions
- Mastering Shared Decision Making
- Risk Management Masterclass for Orthopaedic, Spinal and Neurosurgeons
For a full list of workshops and to find out more, click here
Our online learning platform, Prism
Complete a range of e-learning modules, including communicating risk, preventing complaints and communication after an adverse event, free as a benefit of membership. Access online learning at prism.medicalprotection.org
From other organisations
Getting It Right First Time (GIRFT) report on spinal services
British Association of Spinal Surgeons (BASS) guidance on consent
Royal College of Surgeons of England standards and research
About the authors
Dr John Jolly provides advice and educational support to help members reduce their risk of experiencing medicolegal cases. He is a former associate postgraduate dean and consultant obstetrician and gynaecologist, and joined Medical Protection in 2015.
Dr Heidi Mounsey is a medicolegal consultant and provides advice and support with a variety of medicolegal matters, including complaints and report writing. She is a former anaesthetic registrar and is a Fellow of the Royal College of Anaesthetists. She joined Medical Protection in 2016.