Learning from cases: Orthopaedic surgery

Introduction

About the Author
Dr Heidi Mounsey is a medicolegal consultant and assists members in relation to many of the matters outlined in this booklet. She is a former anaesthetic registrar and is a Fellow of the Royal College of Anaesthetists. She joined Medical Protection in 2016.

Orthopaedic surgery is a specialty that deals 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 during the time period considered (including claimant damages, costs, and legal costs) was in excess of £2 million.

In addition, COVID-19 meant there was a significant change to the way in which many doctors worked, including severe disruption to elective surgery within the NHS. We also saw a large number of individuals contacting our medicolegal helpline for advice and support.

Issues arising as a consequence of COVID-19 included the prioritising of scarce resources, concerns over staffing levels, COVID-19 vaccinations (including in relation to doctors who did not wish to be vaccinated and also those who had fraudulently obtained vaccinations for themselves or their family ahead of schedule), management of patients who refused to wear a mask, and worries about personal risk of exposure. Medicolegal cases where COVID-19 is cited as a factor are ongoing and it is likely the impact will continue to be felt for some time.

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.

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Analysis

We’ve analysed the support we provided UK-based orthopaedic surgery members in more than 900 cases. In addition to advising and assisting in writing medical reports, and addressing complaints in over 300 of these cases, we have supported members in relation to more than 450 of them, including:

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.

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Claims: procedures and contributory factors

 Knee surgery

Claims relating to knee surgery were often brought with respect to:

In many claims, it was alleged that the surgical technique was negligent, but another frequently occurring theme was alleged failure to obtain informed consent. 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 (including that it may not completely relieve pain or fully restore mobility). Further allegations related to pre operative discussion were failure to inform patients of the likely longevity of a total knee replacement. Where claims related to negligent technique, the following allegations were identified:

A number of claims were brought with respect to post operative wound infection, including failure to manage diabetic control adequately leading to increased risk of infection. Other practitioners such as GPs and district nurses may also be named in such cases, but it is recommended that orthopaedic surgeons should ensure that follow up arrangements are adequate, and concerns raised in the community about potential wound infection are taken seriously. Our highest knee surgery total case payment was in excess of £2 million.

Hip surgery

The majority of claims received in relation to hip surgery involved elective total hip replacements. The allegations included:

Alleged negligent outcomes included leg length discrepancy, pain and stiffness, restriction of mobility, nerve damage, infection, or dislocation. Many patients who claimed had required additional correction surgery.

As seen in claims relating to knee surgery, allegations that informed consent was not obtained were commonly seen. Claims were also brought with respect to post-operative wound infections, leading to the requirement for long-term antibiotics and revision surgery.

Of the claims settled on behalf of Medical Protection members, the highest total payment was in excess of £500,000.

Metal-on-metal hip implants

Allegations relating to metal-on-metal hip implants formed a very small minority of hip surgery claims.

Allegations directed at Medical Protection members included ‘mixing and matching’ of components from different manufacturers. This was alleged to lead to increased metallosis or the accumulation of metal debris in soft tissues. The contributing factors leading to claims were failure to inform patients of the risk of developing an adverse reaction to metal debris, failure to monitor metal levels in the blood, failure to perform imaging, and failure to offer revision surgery in a timely manner.

Spinal surgery

In our analysis, spinal surgery procedures were undertaken by either neurosurgeons or orthopaedic surgeons. Where the surgery was performed by an orthopaedic specialist, claims often related to lumbar nerve root decompression or spinal fusion. Common allegations in clinical negligence claims relating to spinal surgery were that the choice of procedure was incorrect or unnecessary, or the surgical technique was poor.

The consequences for the patients were either ongoing symptoms of pain and weakness, leading to significant dissatisfaction, or development of new, more troublesome symptoms, including bladder and bowel incontinence, and foot drop. Some claimants required additional surgery. The highest total claim payment in relation to spinal surgery was almost £400,000.

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. The risk of developing new, and potentially life-changing, symptoms was often also not clearly discussed, and failure to offer conservative management as an option was also a 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 plays a role in many claims.

The British Association of Spinal Surgeons (BASS) has produced useful information for patients undergoing lumbar discectomy and decompression, and can be found at British Association of Spine Surgeons - Lumbar Discectomy and Decompression, but this does not remove the need for the surgeon to ensure they have fully discussed the potential benefits and risks of the procedure specific to each patient.

Hand surgery

A number of claims were made in relation to hand surgery. We found the most common factor was when trigger finger release, Dupuytren’s contracture release, ganglion excision, and carpal tunnel surgery were performed in a one-stop setting where the discussion and consent for the procedure and the surgery itself took place on the same day.

Claims were often 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, and therefore did not discuss the non-operative options available to the patient.

Where a claim was then brought following an adverse outcome, the claimants were in a position to allege that had they been made aware of the potential for non-operative management, they would have opted to pursue this first. 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. In a number of cases, further surgery was required in an attempt to resolve complications arising from the initial procedure. Of the claims settled, the highest total payment was in excess of £200,000.

Foot surgery

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 or neuropathic pain were not discussed before surgery.

Shoulder surgery

A small number of claims were made in relation to shoulder surgery, and the common theme was alleged negligent surgical technique leading to ongoing or worsened pain and lack of mobility, tendon damage, and bursitis.

Fractures

In our analysis, there were claims of missed fractures around total hip prostheses. Some of these occurred following falls in the private hospital setting 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, despite concerns raised by the patient or by allied health professionals in relation to pain or mobility.

Other claims were made in relation to failures to recognise non-union of fractures, or allegations of negligent surgical technique resulting in nerve damage.

 

Case study

This case is based on a real scenario, with some facts altered to preserve confidentiality.

Mr A, a 36-year-old man, consulted Mr B, an orthopaedic surgeon, on a private basis with a ten-month history of right knee pain. The pain was severe enough to interfere with Mr A’s normal hobbies and activities.

On examination, Mr B identified tenderness to the medial and lateral aspects of the knee. He requested an MRI scan, which demonstrated a degenerative posterior horn of the medial meniscus and a meniscal cyst, consistent with a degenerative tear. It was reported that the hyaline cartilage was well-maintained.

Mr B recommended an arthroscopy and trimming of the meniscus. Mr A was informed of the potential benefits and risks. Other potential management options were not discussed. At the time of surgery, a bucket handle tear of the posterior horn of the medial meniscus was identified and resected.

A month after the surgery, Mr B reviewed Mr A. Ongoing pain in the knee was reported by Mr A. This did not settle, and Mr B referred Mr A for physiotherapy. As the pain continued, Mr B arranged a repeat MRI scan four months after the surgery had taken place. This showed evidence of a previous partial medial meniscectomy and significant bone marrow oedema of the medial femoral condyle including complete loss of hyaline cartilage. It was reported that there had been a significant deterioration since the original scan.

Mr B considered there was nothing further that he could do other than offer additional physiotherapy, so discharged Mr A from his care. Some months later, Mr A sought a second opinion from Mr C. The symptoms reported to Mr C included medial knee pain, with knee swelling and stiffness. On examination there was tenderness over the medial joint line.

Mr C requested a further MRI scan. This demonstrated resolution of the bone marrow oedema but identified that the medial femoral condyle lesion was larger and there was also an osteochondral cyst.

Mr C recommended a repeat arthroscopy, which was performed 11 months after the first procedure. Two areas of damage to the medial femoral condyle were identified, as well as an incompletely excised bucket handle tear of the posterior horn of the medial meniscus.

Following the surgery, Mr A reported that although his pain was slightly improved, he was still experiencing symptoms impacting on his activities. Over the next year, a further scan and repeat arthroscopy was carried out, but Mr A continued to have pain to the medial aspect of the knee, and giving way of the knee.

Mr A subsequently brought a claim against Mr B, alleging that the initial arthroscopy should not have been offered without further attempts at conservative management, and that Mr B’s surgical technique at the time of arthroscopy was negligent. He alleged that this had resulted in ongoing symptoms and a requirement for autologous chondrocyte implantation (ACI) and likely a partial knee replacement within the next 15 years. Mr A also complained that Mr B should have identified the ongoing issue was iatrogenic in origin at the time of the second MRI, and should have alerted him to this and apologised.

The case was reviewed by an expert who considered:

It was appropriate to offer an arthroscopy in the first instance, although it would have been reasonable to have also set out the likely progression of symptoms to allow Mr A to consider the option of no surgical intervention.

However, the damage seen to the medial femoral condyle at the time of the second arthroscopy had, on balance of probabilities, been negligently caused by Mr B at the time of the first arthroscopy.

Had the first arthroscopy been performed to the expected standard, then, on balance, Mr A would have made a good recovery and would not have required further procedures.

ACI would be a reasonable treatment and should provide 10 to 15 years of benefit, following which a partial knee replacement would likely be necessary.

The case was settled for a sum in excess of £200,000.

Learning Points

Ensure all options for management, including taking no action, are discussed.

If symptoms are ongoing following intervention, explain to the patient the possible causes and how this may be managed. Seek advice or referral to a colleague if necessary.

Review your surgical technique and complication rate to ensure you are up to date and in line with your peers. Seek further training if necessary.

If you become aware that iatrogenic damage may have been caused, ensure you comply with duty of candour, explaining and apologising to the patient, as well as outlining any potential action that could be taken to rectify the injury. It is important to note that an apology is not an admission of liability.

 

Common themes

Patient complaints

We have analysed the complaints where we’ve supported orthopaedic surgeons, including complaints arising from both the 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 included the following:

Dismissive attitude or rudeness during consultations.

Failure to manage post-operative complications.

Failure to obtain informed consent for surgery.

Misdiagnosis or delay in diagnosis.

Delay in organising further care, such as physiotherapy.

Regulatory (GMC) and disciplinary investigations

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 and hospital disciplinary 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 included the following:

Inquests

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. Read our for further information about what to expect.

We identified the following issues leading to members being asked to provide a statement or give evidence at an inquest:

Orthopaedic surgery in the UK: top tips to minimise risk

Please note this is not an exhaustive list of recommendations, but some 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. Take time to explore this with each patient – for example, one patient may consider a 1% risk of worsened pain acceptable, but another may not.

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.

Listen to what your patient considers a successful outcome. Understand their concerns and clarify whether or not it is likely you can meet their expectations.

Document all discussions thoroughly and contemporaneously.

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 friends or family, access more information, and ask any follow up questions.

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, especially the option of conservative management. It may be tempting to consider that the patient has already considered and rejected conservative management by the fact they are consulting with a surgeon, but our analysis of common themes leading to dissatisfaction suggests this is not the case.

Double-check your patient’s understanding of the information and make sure decisions have been accurately informed.

Remember consent is a process and not simply a signature on a form.

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.

Ensure a perioperative management plan is in place, including assessment of venous thromboembolism risk and the care of any other medical conditions, such as diabetes.

At discharge, review the requirement for ongoing anticoagulation 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.