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Adverse outcome vs. expected complication: Which is which?
Case of torn meniscus resulting in a saphenous nerve injury illustrates difficulty in defining results after an elective orthopedic procedure.
A 23-year-old man saw his orthopedic surgeon for knee pain and buckling 1 year after a football injury. MRI showed a possible medial meniscus tear. During subsequent arthroscopy, a medial plica was found impinging against the patella; resection led to relief of symptoms.
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A repeat injury to the same knee led to another MRI 2 years later that showed a torn medial meniscus. Arthroscopy showed a longitudinal tear of the posterior medial meniscus. The tear was not “through-and-through,” but the length justified repair.
Repair had to be deferred for unknown reasons, causing the patient to go back to the operating room 2 weeks later to repair the torn meniscus. During repair, instruments were placed in routine fashion, but access to the meniscus was difficult. Therefore, an incision was made over the posterior-medial knee, the saphenous nerve was identified; the fascia was incised, the medial head of the gastrocnemius was palpated, and a retractor was positioned to get exposure.
The surgeon passed an arthroscopic cannula through which a meniscal rasp and a synovial shaver were inserted to debride the tear in preparation for repair. The operative note said that the surgeon “increased the pre-bent curve of the needle” as it passed through the posteromedial capsule, next to the gastrocnemius. The needle was pulled through to make another pass; three sutures were thus placed to achieve secure repair.
Postoperatively, the patient had burning, diminished sensation, and tingling in the distribution of the saphenous nerve. The surgeon diagnosed a “saphenous nerve neuropathy, possibly from traction.” The medial incision was explored 5 weeks later to “rule-out nerve laceration versus a sutured nerve,” according to the clinic note. The saphenous nerve was identified in the scar and it appeared to be in continuity, although flattened and deformed as it passed next to the joint. The nerve was felt to be irreparable.
Several weeks later, with continuing symptoms and weakening quadriceps function from pain, the patient went to a pain specialist who diagnosed reflex sympathetic dystrophy.
After seeing many more doctors, a different orthopedic surgeon re-explored the incision, and found instead that the saphenous nerve had been divided “in its division along the medial border of the knee.” A neuroma had developed, and since the distal part of the nerve could not be located; the surgeon excised the neuroma and buried the proximal nerve ending in adjacent fat. Symptoms continued, and several more visits to the pain center ultimately led to a lumbar sympathectomy.
Alleged negligence
The patient filed suit against the first orthopedic surgeon, arguing that the meniscus repair was not needed since symptoms were resolving with conservative treatment. The plaintiff further argued that definitive treatment should have been done during arthroscopy, such as repair, partial meniscectomy, or leaving the incomplete tear alone. The final arthroscopy required for repair was thus unnecessary, he contended, based on the record which was vague in terms of the precise indications for the meniscal repair.
The records only indicated that the decision to repair was based on the length of the tear. The patient contended that meniscus tears are repaired for instability (not clearly documented in this case), or if they are in the peripheral one-third of the meniscus (where healing is more predictable). He noted that during diagnostic arthroscopy, the surgeon had documented that the tear was not “through-and-through.”
Arguments
Was the tear related to the patient’s symptoms? Knee arthroscopy is done routinely, with low odds of complications. Meniscal repair can be demanding and can have more complications. Medial meniscus sutures can injure the saphenous nerve. The surgeon in this case obviously knew this risk and took some steps to avoid injury. Still, the saphenous nerve was injured.
Meniscal arrows are an alternative method of repair; these are passed from inside the knee and may have a lower risk of saphenous nerve injury. But, inside-out suturing of the meniscus is still the standard, and arrows have not proven quite as effective.
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The surgeon testified that nerve injury probably occurred during the incision, dissection, or retraction. He said the injury was unavoidable; the operation was necessary; he identified the nerve and took steps to protect it; the patient knew of the risk of nerve injury; and the operation was done diligently.
The plaintiff rebutted that if nerve injury occurred during the incision, then the surgeon was careless because incisions are often made close to nerves without injury. If the injury occurred during dissection, the surgeon was careless in not dissecting out the nerve and recognizing injury to it. Also, if the injury occurred during retraction, the surgeon was careless in not identifying the nerve and protecting it from vigorous retraction. He further argued that the surgeon assumed that the nerve was behind the retractor without clearly identifying its course, and that this assumption was erroneous.
The plaintiff conceded that nerve injury can occur despite flawless surgery, such as after resection of a tumor that is adherent to a nerve, or after routine hip replacement when the patient wakes up with a sciatic nerve palsy. Informed consent can make a patient aware of such risks, however this case was different. The patient maintained that the specific saphenous nerve injury that he experienced, where the nerve was crushed and divided, was not an inherent risk of the surgery.
Editorial analysis
This factual uncertainty of this difficult, real-life case reminds us how hard it can be to define an “expected complication” after an elective operation. The word “complication” is often used glibly in a medicolegal context to imply that the surgeon was not negligent. But, the word has different interpretations depending upon perspective.
A patient may regard a complication as an inherent risk of surgery that cannot be completely precluded, regardless of surgeon skill. A surgeon may view a complication is an injury that is known to be associated with a particular procedure. Differing perspectives are illustrated in the classic example of a transected common bile duct during minimally invasive gallbladder removal. Injured patients typically contend that diligence should always prevent this injury because it occurs from an avoidable misidentification of structures. Surgeons counter that common duct injuries occur in the absence of negligence, even in the best hands.
In the meniscal repair case, the jury verdict found in favor of the surgeon. The arguments and counter-arguments in the case are instructive and illustrate the uncertainty in which juries must reach a verdict.
What can we learn from this case: Is a saphenous nerve injury during meniscal repair an expected complication? If some saphenous nerve injuries are complications and others reflect negligence, how would you differentiate the two? Do you agree with any of the plaintiff’s arguments in the above case and how would documentation by the surgeon that the nerve was identified and protected tip the scales one way or another?
Next month:
Orthopedic Medical Legal Advisor will address enforcement of Anti-kickback Statutes by the Department of Justice.
For more information:
- B. Sonny Bal, MD, MBA, is associate professor of hip and knee replacement at the Department of Orthopaedic Surgery, University of Missouri School of Medicine.
- Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.