Drilling down into orthopaedic claims

Authors: Gemma Taylor and Andy Norman

The MDU recently analysed more than 400 claims notified to us in a recent five-year period by members working in independent orthopaedic practice and the issues that lie behind such claims.

We successfully defended 78% of the cases in this review, without paying compensation to the patient. However, a claim for clinical negligence can be brought many years after the incident occurred, often without warning. Our expert claims handlers and medico-legal advisers understand how stressful this can be and the importance of mounting a robust defence of your position.

Compensation is awarded with the aim of returning the patient to the position that they would have been in had the negligence not occurred.

If the injury suffered is such that the person can no longer work and requires a significant level of care, then considerable damages will be paid. The size of damages does not reflect the magnitude of the clinical error, but the injury to the patient.

Reasons for claims

The majority of claims files that the MDU received were due to one of four reasons: post-operative complications, delayed diagnosis, intra-operative complications and consent. Below we look at some of the most common allegations for each area.

Post-operative complications

Post-operative complications featured in almost half of the claims examined. Allegations included:

• Long-term pain.
• Poor healing and wound infection.
• Radial nerve damage and significant loss of function due to inadequate nerve protection during surgical fixation of the humerus.
• Femoral nerve damage following knee surgery leading to reduced mobility.
• Non-union of fractures due to poor surgical technique; for example, malpositioning.
• The use of wrong-sized implants and the failure of surgical components post-surgery.
• Inadequate post-operative wound management; for example, an above-knee amputation following total knee replacement.
• Post-operative wound infection. In some cases, this led to the failure of joint replacements leading to revision surgery.

Delayed diagnosis

Allegations of delayed diagnosis or referral featured in around 15% of cases. Diagnoses that were allegedly missed or delayed included:

• Tendon ruptures
• Sarcoma
• Meningitis
• Vascular necrosis
• Ligament/cartilage tears
• Osteomyelitis
• Dislocations
• Nerve damage
• Intra-operative issues

Ten per cent of claims alleged poor operative technique, during the course of a procedure. Such allegations included:

• Equipment or other foreign body left in the patient after surgery.
• Chemical or diathermy burns, scarring or nerve damage.
• Incorrect equipment used or the lack of available equipment resulting in surgical procedures being abandoned, delayed treatment and additional procedures required.
• Severe bleeding due to perforation or puncture injury.
• Nerve damage due to poor operative technique; for example, damage to the sciatic nerve during a total hip replacement, resulting in foot drop.
• Intraoperative fractures, such as a femoral neck fracture during hip resurfacing surgery.

Consent

Consent issues featured in many cases, but 10% of claims involved allegations centred on inadequate consent. The consent process is paramount in managing the patient’s realistic expectations. Failure to either manage those expectations or adequately explain the risks and benefits of the procedure was a common theme across the cohort of claims.

In a number of cases, it was alleged the risk of a worse outcome or long-term damage, including nerve damage, wasn’t properly explained. Consent cases are often difficult to defend and it is vital to be aware of the impact of recent judgments such as Montgomery v Lanarkshire Health Board (2015) and the GMC’s updated guidance on Decision Making and Consent.

Record-keeping is vital. Without a thorough contemporaneous record of the detailed discussion with the patient about potential risks and benefits, a surgeon can find it difficult to defend allegations of consent, even where their usual practice is to discuss such issues.

Managing risks

• Claims involving orthopaedic surgeons are made for a variety of reasons, but there are some common risk factors, which, if managed appropriately, can help to reduce risks. These include:
• Provide patients with detailed information on all treatment options verbally and in writing and ensure they have appropriate time to make a decision.
• Consider more conservative treatment options and whether all avenues have been exhausted before recommending invasive procedures to patients – particularly in spinal or joint replacement surgery.
• See the patient ‘as a whole’ not just the isolated issue at hand. This includes consideration of comorbidities and psychological factors.
• Give appropriate safety netting advice so the patient knows in what circumstances to return for further advice.
• Keep detailed records of your discussions with patients including any phone calls by you or your administrative team. Record discussions with other clinicians: GPs, out-of- hours clinicians and other consultants involved in the care process. Many claims are brought a considerable time after events in question, so records can be vital.
• Make sure that the full range of equipment and necessary components are available when operating in the private setting. Consider an urgent referral to an NHS hospital if necessary.
• Be aware of the increased difficulties when operating on morbidly obese patients. Have a lower threshold for closer post-operative follow up and early investigation of possible complications and consider whether it is more appropriate for these patients to be treated in an NHS setting with highdependency care available if needed.
• Ensure you have robust post-operative arrangements for patients in the private setting. Remember that you must be contactable or provide appropriate cover and must arrange for prompt assessment of the patient in the event of any issues.
• Consider your professional duty of candour. If something goes wrong, apologise and notify the patient and any necessary parties as soon as possible.
• While orthopaedic claim numbers have not increased in recent years, the cost of claims has spiralled. This is not due to clinical standards but to a deteriorating legal environment which the MDU is campaigning to reform.

See more at: www.themdu.com/faircomp.