Orthopedic malpractice: Cases in the news

In a realm that seldom has clearly defined right and wrong answers, beware of the situations that can lead to liability.

We would like to update you on recent cases of alleged medical malpractice related to orthopedic surgery. The cases are selected based on their informational value, and hopefully will educate readers about practice variables that can lead to liability exposure. Certain details have been modified to ensure anonymity, but the significant highlights and informational value of the cases remain unchanged.

Delayed infection treatment

Some background information of relevance to the first case: In 2001, a 23-year old patient suffered a serious knee infection after receiving a soft tissue cadaveric implant that was contaminated with Clostridium which ultimately resulted in his death. The tissue had been harvested and processed from a donor who committed suicide; the body was retrieved by a tissue bank and was not refrigerated for more than 19 hours, which was significantly outside the limits allowed by industry standards. The company complied with an FDA-ordered recall of its human allograft tissue and by 2003 had instituted safe procedures and was cleared to resume processing orthopedic tissues.

In a case that occurred after the above events, a 40-year old man with knee instability underwent allograft bone-tendon-bone ACL reconstruction. Redness and drainage developed after a few days, and the orthopedic surgeon diagnosed a postsurgical staphylococcal infection. Repeat surgery was deemed not necessary and the patient was placed on intravenous antibiotics for 6 weeks, which cleared the redness entirely.

The patient reported continued swelling, pain and stiffness in the knee to the surgeon over the following 6 months. Records showed the patient missed some appointments, but kept others. The surgeon recommended continued therapy, analgesics and appropriate modalities to control the swelling.

B. Sonny Bal

Lawrence H. Brenner

Some months later, the patient saw another surgeon who diagnosed a radiolucent area near the femoral insertion of the graft. Suspecting abscess formation from persistent infection, the second surgeon removed the graft, performed knee debridement and irrigation, and removed part of the femoral bone for an abscess that had invaded most of the femoral notch area.

Subsequent radiographs showed progressive chondrolytic changes in the knee, and inflammatory laboratory markers were mildly elevated. The patient was given the options of knee fusion, further bone debridement or a total knee, if the deep infection cleared, and he would be at risk for recurrence of sepsis and amputation.

The patient continued to ambulate, with a knee immobilizer and crutches while he pondered his options. He could not bend the knee, and continued to have pain and swelling.

He sued the tissue bank for delivering a possibly defective implant with a pre-existing infection and the surgeon for delaying aggressive treatment of a deep knee infection complicated by a tissue allograft. The company settled before the trial for an unspecified sum; leaving the first orthopedic surgeon as the sole defendant.

Following a jury trial, a verdict exceeding $3 million was returned in favor of the patient. The jury assigned 10% of the damages to the patient’s pre-existing knee injury that led to cruciate ligament instability, with the rest assigned to the surgeon’s conduct.

A point raised by the surgeon was that the patient had no more than a superficial infection that was over-treated with 6 weeks of antibiotics. The surgeon presented records showing that knee swelling and redness had subsided with this treatment, and inflammatory laboratory markers had subsided progressively.

Plaintiff’s experts contended that the surgeon should have remained vigilant to the possibility of a latent, deep infection, and should have been compelled to rule out the possibility of a serious deep infection earlier. Furthermore, they contended that the patient’s continuing pain and swelling and failure to regain knee motion should have alerted the surgeon that something was wrong. At the least, the standard of care required that the surgeon seek a second opinion from an infectious disease specialist and refer the patient to a specialty-trained sports surgeon, they said.

What do you think?

• Should patient complaints of pain and a failure to recover from elective surgery trigger an aggressive workup and a timely referral to another doctor?
• Should the jury have deferred to the surgeon’s judgment, based on first-hand observations and treatment of the patient, that the possibility of a deep infection in the knee appeared to be unlikely?
• Did settlement with the implant company, with its noted history, necessarily prejudice the case against the surgeon?

Which knee is the right one?

A 50 year-old patient underwent elective knee arthroscopy for a torn meniscus. Prior to surgery, the patient stated, and the physician documented, that both knees were symptomatic with medial joint pain, but that the right side was worse. Radiographs showed early osteoarthritis with mild joint space narrowing of both knees. Conservative treatment helped somewhat, and ultimately, a MRI scan of the right knee showed a medial meniscus tear.

The surgeon recommended arthroscopic treatment in light of the nature and persistence of symptoms. The final note in clinic mentioned that if the patient were pleased with the outcome of the right knee operation, it was possible that a left knee arthroscopy would be planned a few weeks later, for identical pathology.

The knee operation was performed at a hospital and records showed that the surgeon had several similar operations scheduled that day. The surgeon marked the right knee before the patient was wheeled to the operating room. The mark was off to the side and just above the knee; the circulating nurse positioned and prepped the knee appropriately after which the scrub nurse and the physician’s assistant draped it per the standard protocol. The surgeon scrubbed in next, and a “time-out” procedure was done, according to records, whereby all parties verbally agreed on the proper side to be operated on.

A degenerative medial meniscus tear was identified and the surgeon trimmed away the torn piece. As the surgeon was shaving off some chondrolytic changes on the medial femoral condyle, the circulating nurse discovered that the team was operating on the left leg. Looking under the drapes, the mark on the right knee was identified. By this time, the arthroscopy was complete and the surgeon informed the family of the error, and asked if they wished for him to address the correct, right side. The family refused, and the patient subsequently filed suit for wrong-sided surgery.

At trial, and during pretrial litigation, the defendant surgeon acknowledged the error that clearly occurred despite adhering to the standard time-out procedure instituted by the hospital, and followed by the entire surgical team.

The jury returned a verdict for $25,000, and apportioned culpability as: the surgeon was at 50% fault, the hospital 40% fault and the anesthesiologist 10% fault. Prior to trial, the hospital and the anesthesiologist settled for an amount in excess of the $25,000 judgment against the surgeon, and according to state law, the surgeon paid nothing, despite the dollar judgment.

What do you think?

• Should the surgeon have any liability here?
• Damages are a critical element of a medical malpractice tort action; and must be proven by a patient to collect monetary compensation. Absent damages, can egregious conduct ever constitute a sufficient basis for a jury award?
• Was it fair to the patient that monetary damages were reduced in proportion to the previous settlement?

Legal issues and the related fact patterns rarely lend themselves to bright-line rules that can guide proper adjudication of the underlying dispute between parties. These cases reflect real-life intersections where the practice of orthopedic surgery and legal concepts converged; different scholars, lawyers, and physicians may have their perspectives on the fairness of the outcomes, or the nuances involved in these cases.

As in all such instances, the editors are especially interested in your perspective.

For more information:

• B. Sonny Bal, MD, MBA, is associate professor of hip and knee replacement in the department of orthopedic 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.