Consultant orthopaedic surgeon Dr W receives a claim following his performance of a total knee replacement. Medical Protection fights the case all the way to a trial. By Suzanne Tate, Litigation Solicitor.
Mrs Q was referred to consultant orthopaedic surgeon Dr W, as an adult patient with cerebral palsy, by a leading and internationally renowned rehabilitation consultant. Having been previously independently mobile but with a longstanding spastic gait, her mobility had been deteriorating with increasing knee pain; steroid injections into the knee joint had only provided short lived relief.
Mrs Q’s left knee had patella alta (high riding), 15 degrees of valgus, 25 degrees of fixed flexion and advanced osteoarthritis. Dr W agreed to perform a left total knee replacement as a pain-relieving procedure, with any improvement in mobility being a bonus. The surgery went well and Dr W was able to correct the valgus and straighten the fixed flexion to ten degrees.
Mrs Q remained an in-patient for one week, receiving intensive physiotherapy twice daily. However, she had a failed discharge to her home where she struggled to cope with stairs and she was readmitted for a further 12 days. During this time she continued to receive twice daily physiotherapy. She was seen by the consultant in rehabilitation and received Botox injections into her hamstring. Mrs Q was later discharged to another hospital for further rehabilitation under the care of the consultant in rehabilitation. When Dr W saw Mrs Q as an outpatient four months after surgery, it became clear she had not been receiving any domiciliary physiotherapy and she had 40 degrees of flexion in the left knee. Dr W arranged for physiotherapy and Mrs Q’s gait and flexion improved.
Over time the Mrs Q’s left knee and mobility deteriorated and significant fixed flexion deformity led to the need for revision surgery six years later. The revision surgery was performed by a second surgeon and it was a much more invasive procedure, using a hinged implant.
Allegations
Mrs Q made a clinical negligence claim against Dr W, alleging she woke after Dr W’s surgery with very considerable flexion deformity which never resolved. As a patient with CP this complication was entirely foreseeable and Dr W’s surgery should have been planned with specific postoperative management to address the complication. It was alleged Dr W was negligent in failing to provide continued postoperative epidural to prevent pain and spasm and permit effective physiotherapy, and a failure to provide postoperative muscle relaxants, splintage and use of a continuous passive motion machine, intensive physiotherapy and if necessary MUA. It was alleged Dr W gave postoperative instructions for a normal total knee replacement regime and ought to have referred Mrs Q to an alternative surgeon if he was not adequately experienced. This left Mrs Q wheelchair bound five years earlier than she would have otherwise required and necessitated revision surgery.
We never accepted Mrs Q woke from surgery with considerable fixed flexion that never resolved. Her detailed physiotherapy notes clearly demonstrated she was able to independently mobilise with elbow crutches and a flat left foot to the floor up to six months postoperatively. Mrs Q did not pursue a claim against the hospital or the consultant in rehabilitation for her postoperative rehabilitation post-discharge, and eventually accepted Dr W had no control or responsibility over her physiotherapy provision or her postoperative rehabilitation after her discharge three weeks after surgery. Dr W’s direction for a normal knee replacement regime in his operation note referred only to the management of the drain, her wound and the usual postop blood tests and x-rays. In every other respect Dr W was patently aware of her CP and the likely complications, having performed a technically challenging surgery that took twice as a long as a normal knee replacement and having arranged intensive physiotherapy over the course of a three-week period as an inpatient, when patients are usually discharged after a period of 2-3 days postoperatively.
It was eventually accepted Dr W had sufficient experience to perform the surgery, having been specifically referred by a leading rehabilitation consultant, and as a surgeon specialising in knee replacements for patients with other neurological disorders and having performed other surgeries for adult patients with CP. It was accepted there would not be any other surgeon in the country with any greater experience.
Dr W accepted Mrs Q suffered from muscle spasms periodically, when her pain flared. However, he did not accept that a continued postop epidural, muscle relaxants or splintage or an MUA could have avoided the permanent fixed flexion that eventually returned. All of the postoperative measures Mrs Q alleged should have been provided were only temporary in nature and once they stop the muscle spasms can return eventually, leading to the fixed flexion deformity. It is not possible to keep a patient on an epidural or use muscle relaxants with a continuous passive motion machine indefinitely. An MUA would have only taken Mrs Q back to the position achieved immediately after surgery, after which muscle spasms would again occur. The fixed flexion deformity was a slow and inevitable deterioration of her underlying CP.
Mrs Q did not accept she ever received effective physiotherapy whilst she was an inpatient. Her considerable fixed flexion prevented this and the physiotherapists simply left her in her bed as they were unable to perform any exercises.
It was clear from the outset that Mrs Q’s recollection of events was not in keeping with the significant number of physiotherapy notes, which demonstrated she did not wake from surgery with fixed flexion deformity and effective physiotherapy was in fact performed. After serving a defence, we directed Mrs Q and her representatives to all of the physiotherapy notes, which undermined her case, and asked her to accept she did receive intensive and effective physiotherapy and that she did not receive the normal knee replacement postop regime. This step – taken early in the proceedings – ought to have been a red flag to her representatives that the contemporaneous notes were repeatedly at odds with Mrs Q’s account.
The claim goes to trial
Despite this, Mrs Q pursued her claim to a trial. Liability remained fully denied. The trial judge eventually dismissed the claim on the third day of a five-day trial. The Medical Protection legal team was able to methodically pick apart all of Mrs Q’s assertions with the contemporaneous records. By the end of the third day, Mrs Q’s expert accepted he had not even seen all of her records and he could not maintain any of his criticisms nor his opinion that Dr W was negligent. There was no case to answer.
Commentary
It is a shame Mrs Q and her representatives did not undertake a forensic review of all of her records with her expert before trial or even before deciding to pursue a claim. Dr W had a claim hanging over him for five years, with all of the stress and worry that litigation entails, including the arduous process of a lengthy cross-examination by Mrs Q’s team at trial. However, he was delighted with the outcome and the claim demonstrated that careful consideration and preparation with the right experts and legal team throughout the lengthy litigation process eventually resulted in the right outcome for our member.
The New Zealand perspective
Firstly there is the usual sigh of relief that this kind of legal action does not occur in New Zealand. The usual routes would be an ACC Treatment Injury claim, and/or a complaint to the HDC. For an ACC claim to succeed, there is no need to establish ‘fault’ on the part of the doctor (unlike a court process in the UK), and the decision is made on the facts of the case and whether this meets the ACC criteria for the claim to be accepted.
At the HDC, the criteria is whether the care provided met accepted standards. Usually this is determined by the expert engaged by the HDC to review the case, and it is uncommon for the HDC to disregard an expert opinion. At Medical Protection we have observed some variability in the quality of expert opinions, though none so poor that they did not review the clinical record as occurred here. The most common areas of contention are the application of hindsight bias, an apparent belief that the role is to ‘prove’ the case in favour of the HDC instead of an unbiased assessment, changes of opinion despite no new clinical information being provided, and experts commenting on areas outside their own expertise. Medical Protection has had to take the HDC to the High Court to overturn an adverse opinion by a specialist who had apparently never performed the type of procedure in question, and where the HDC persisted in favouring that opinion over those obtained by Medical Protection from specialists well-versed in the procedure. We won.
Finally, a thought for the patient. Although obviously confused in her recollection of events, she was clearly very poorly advised by her legal team and was given false hope that her claim would be successful. Good notes were the key to the case being dismissed. It is likely she will have incurred significant legal costs and could potentially be liable for the Medical Protection legal costs as well. Despite various criticisms of the ACC processes, pleasingly we do not have patients ending up significantly worse off when they pursue their medicolegal options regarding a case.