Author Archives: Medicolegal

General Advice

Differentiating Between Complications And Negligence

Negligence is a term used by lawyers and not necessarily in the purview of medical practitioners.

From a medical practitioner’s perspective, the term relates to three interlinked activities.  The first is the presence or otherwise of a duty of care to the patient.  It would be hard to deny that such a duty existed in a clinical liaison.

The second relates to a breach of that duty.  From the medical perspective, this can be more difficult to analyse although expert opinions can assist.

The third facet is the establishment of a link between a breach (if it occurred) and an adverse quantifiable outcome.

'Doctor, you amputated the wrong leg!'

‘Doctor, you amputated the wrong leg!’

Let’s Look at Some Adverse Outcomes

Unfortunately, complications occur and could seemingly fall under the heading or guise of “negligence”.  For example, more than 50,000 Australian patients undergo total hip replacement every year.  This is an extraordinary number of operative interventions and almost all of them do extremely well.  A small but finite percentage does not do well.  Almost 1% of patients will have an infection.  Of those, 2% or 3% will note ongoing sepsis indefinitely.

A further 1% or so of patients may suffer with an episode of dislocation of the joint.  Again, a small subset of that 1% may note recurrent dislocations and require further operative intervention.

Dislocated THR

Even more seriously, approximately 2 in 1000 patients undergoing a hip replacement will die.  The causes of death are usually of a cardiopulmonary nature and occur presumably and hopefully as a result of factors outside the control of the treating team.  Whilst all of these complications are undesirable, they do not necessarily indicate negligence.

Conversely, if a patient suffers with recurrent dislocation of a joint because the implants have been seriously malpositioned, a claim for negligence might exist.  Several tests must be applied.  The modified Bolam principle will be one.  If it can be established that the surgical performance was substantially below that expected of a reasonably competent, appropriately educated hip replacement surgeon in Australia, then the test may be met.

Not all experts are willing to engage in cases of alleged medical negligence.  Other experts are prepared to stand up and be counted.

I suggest that you ensure you engage an expert who has the experience, the wisdom and the courage to call it as it really is.

Oh, and be careful of interpersonal differences and TURF WARS!

Case Vignette

Knee Ligament Injuries

The knee joint is a most complex structure.  It is capable of hinging, gliding and rotation.  Attempts to reproduce this complex biomechanical event have been met with limited success.  Nature’s competence includes a special arrangement of ligaments both within and without the joint.


The ligaments on the inside include the anterior and posterior cruciates.  The anterior cruciate ligament is not uncommonly torn during rigorous sporting activities.    Footballers, netballers and snow skiers are all vulnerable.

So What?

The cruciate ligament itself has a rich blood supply.  When the ligament is ruptured, the knee joint rapidly fills with blood.  It is associated with considerable pain.


Over the subsequent weeks, the so-called haemarthrosis resolves and the patient gradually improves.  Unfortunately, some patients note ongoing rotary instability.  They can walk and even run in a straight line but attempting to pivot or suddenly change direction is met with pain and a sensation of instability.  The knee joint sometimes gives way.


Many of these patients require an operative reconstruction.  The hamstring tendons can be harvested from the thigh or the patellar tendon can be harvested from the front of the knee itself.  Artificial ligaments are sometimes used, although with limited success.


A patient who has an ongoing cruciate ligament instability that has not been repaired, and who remains seriously symptomatic, will exhibit a loss of up to 10% of whole person function.  You can quantify this loss using Table 17-33 on page 546 of the AMA 5 Guides.


Even after a successful reconstruction, some patients will continue to exhibit mild ongoing instability.  Most patients will thereby exhibit a loss of 3% of whole person function.  General damages may therefore be awarded as a result.  In addition, as a result of the ongoing instability, remunerative, recreational and domestic activities could be compromised.  Further financial losses may accrue.

But Wait, There’s More

The chronic instability that ensues may be a precursor to osteoarthritis.  Over decades, the disease may progress and a joint replacement is eventually required.  Very considerable costs can result.  Your orthopaedic expert will assist you in quantifying the true extent of the loss.

Lead Article

Can Future Care Costs Be Significant?

Yes!  They can become enormous.  Consider for example a previously, fit, well and active 20 year old female who has been rendered quadriplegic in a jet ski accident on the Broadwater in Southport.

CXAL Fracture

Despite all best intents and the supply of the very latest of devices, she will be heavily dependent upon family, friends, professionals and others for the remainder of her life.  Enormous care costs are likely to accrue.

Female quad

At the other end of the spectrum is a 50 year old male who has sustained a fracture involving his non-dominant wrist.  The fracture did not require any operative intervention and instead, was managed satisfactorily with a plaster cast for eight weeks.  Physiotherapy thereafter did give rise to some gradual improvement and in fact, he was capable of most sedentary activities of daily living.  He is a non-complaining plaintiff and from an outward perspective, appears to get on with his life without much difficulty.


Not All is as it May Seem

Wrist Jt Fracture

Careful analysis however confirms that he does have significant restrictions in wrist movement, has quite marked pain when the wrist is forced backwards or forwards, has difficulties gripping objects and cannot rotate his forearm sufficiently to grip an object with any authority.


Favoured activities such as lawn mowing, heavy gardening, trimming branches from overhead trees and cleaning leaves from the gutters around his house have now become much more difficult.  Whereas he would previously accomplish these tasks without a second thought, he has now become dependent upon others for support.  He is a bachelor, has no siblings, no relatives living nearby and is almost friendless.  This man will have to engage outside contractors to assist with all of those seemingly menial tasks.  Considerable ongoing costs are likely to accrue.  The important “6 hours + a week” threshold might be exceeded.

When assessing the costs of future domestic care, it is important that your orthopaedic reporter assesses the plaintiff and his or her injury at an individual level.  We all differ with our capacities, our incapacities and our disabilities.  Precision can only come from a precise analysis.

Lead Article

Future Therapeutic Costs – Who Pays What and When?

Plaintiffs undergoing a medicolegal examination have usually reached a state of Maximal Medical Improvement (MMI) following the index injury or incident. Many months and sometimes years have elapsed and the therapeutic programme, regardless of its complexity, has usually plateaued. Expenditures to date can be accurately quantified. That’s the easy part.


It is more difficult however to accurately assess future therapeutic requirements. An insightful understanding of the natural history of conditions, the ability to formulate an accurate prognosis and experience with all facets of medical costs are required.

There is More to it than Just a Fall

For example, a 58 year old lady may have fallen at the shopping centre and sustained a fracture involving her proximal thigh bone or femur. This is a so-called femoral neck fracture. Varying therapeutic regimens are available for managing this problem but one may have included the performance of a total hip replacement.

Hip replacements perform superbly under normal circumstances. Those performed for femoral neck fractures are less good but still more than satisfactory.


Hip replacements are man-made and not God-made. They have the ability to wear, loosen, fracture and fail. It is a reasonable assumption that hip replacements will not last “forever”.

How Long Will Things Last?
Whilst it is always difficult to predict just how long a specific joint replacement will last in a particular patient, longitudinal studies can give some statistical advice. For example, a well performed hip replacement has a 90% chance of not requiring revision within 20 years. It would be unrealistic to think that all of these joint replacements will fall off the perch in their 21st year. Clearly, that is not the case. Many will last 30 years, some 40 years and there may even be a few still around in 50 years provided the plaintiff lives long enough.

We are all Living Longer

If we come back to our 58 year old plaintiff, and given that she has a further life expectancy of three decades or so, it would be reasonable to assume that she has at least a 15% chance of requiring a revision operation at some time. Revision hip replacements are more complex and more expensive than a primary hip replacement. Costs can be assessed variously but in general terms, a total expenditure in the vicinity of $60,000 can be expected. It may therefore be reasonable to allocate 15% of that $60,000 in her final award.

Costs Can Add Up

Other and less obvious costs can also be involved. She may require the use of a walking stick or a wheelchair. She may benefit from the intermittent ingestion of analgesics with associated pharmaceutical costs. She may require physiotherapy and repeated visits with her local medical officer or her orthopaedic surgeon. All of these factors require appreciation and calculation.
Future therapeutic costs can become a very important part of any settlement following a personal injury or medical negligence claim.

Case Vignette

Is It The Shoulder Joint Or The Acromioclavicular Joint?

The shoulder joint is formed by the upper end of the arm bone (the humerus) and a socket (the glenoid) on the outer edge of the shoulder blade (the scapula). It is the humeral head which articulates with the glenoid process.


The acromioclavicular joint is nearby, but separate. It is formed by the outer end of the collar bone (the clavicle) and the inner aspect of the acromion (part of the shoulder blade but well above the socket).


So What is the Issue Here?

The shoulder girdle itself works synchronously but the two joints do remain separate. The acromioclavicular joint not uncommonly develops degenerative changes as patients age.

Plaintiffs can be injured and sustain ongoing problems referable to the shoulder joint or glenohumeral joint itself. This may involve the rotator cuff, the labrum around the glenoid, the glenoid itself or even the humeral head. Specific therapeutic regimens may be required, functional losses may result and compensation could be due.

It should be appreciated however that the acromioclavicular joint is not necessarily involved in the process.

It is the Operative Loss

During the course of an operative management programme for the glenohumeral or shoulder joint, some upper limb surgeons will also ablate the acromioclavicular joint by removing the outer end of the clavicle.

That supplemental procedure (the acromioclavicular joint excision) is not necessarily linked with the original injury and is therefore not of a compensable nature. The AMA 5 Guides however ascribe some considerable importance to the acromioclavicular joint. The excision of the outer end of the clavicle, thereby ablating the acromioclavicular joint, yields a loss of 10% of upper extremity function or a loss of 6% of whole person function. You could refer to Table 16-27 on page 506 and Table 16-3 on page 439 to check my calculations.

This is a significant impairment but it is not necessarily due to the subject accident. Apportionment of blame will be necessary.


General Advice

Mandatory Reporting In The Medicolegal Setting

The national law governing health practitioners in Australia contains a subsection dealing specifically with mandatory reporting. This is where practitioners who are aware of some significant underperformance on the part of a colleague are obliged to report that underperformance for investigation and appropriate management if necessary. This is most commonly seen in a clinical setting, in a hospital or an environment where clinicians are able to observe each other.


Consider this Scenario

Occasionally, this can also arise in the medicolegal setting. I recall a telephone call from a colleague received recently. He had seen a young woman who had sustained a seemingly relatively innocuous injury to a knee joint and who had been managed variously by three orthopaedic surgeons over a four year period. The woman was in her late twenties and over that four year period, with those three orthopaedic surgeons, had undergone no fewer than twelve operations. It appeared that some of the operations were particularly unwise and possibly poorly performed. For example, the ninth operation was the performance of a total knee replacement. This would be a very uncommon operation for a woman in her late twenties who was otherwise relatively fit and well. The tenth and eleventh operations were aimed at eradicating overwhelming sepsis within the joint. The operations were poorly timed, poorly performed and destined to fail. Unfortunately, the final operation was in the form of an above knee amputation.

The question posed by my colleague in the telephone conversation was how he should go about addressing the matter outside the medicolegal arena.

It was clear to me. He had no option but to advise AHPRA (Australian Health Practitioner Regulation Agency) of the sequence of events and leave it with them. Whilst I do not have total confidence in the system, there is no better avenue available. At least he could expect a thorough investigation and hope for appropriate action thereafter. Simply letting the matter rest would be unacceptable.

Case Vignettes

But He Didn’t Hurt His Ankle!

long leg cast

The plaintiff sustained a fracture involving the upper end of his shin bone.  It was managed successfully, it had united without difficulty and the expectation was that he would return to symptomatic normality.

His claim however centred upon his ipsilateral ankle.  He complained of pain, swelling and stiffness which interfered with his ambulatory capacity and compromised his future economic prospects as a labourer.  READ MORE


“You Can’t be Serious!”


The insurer was incredulous.  How is it that this upper shin fracture has given rise to such a debilitating problem with the ankle?

Well, the therapeutic regimen was of a non-operative nature and it included the application of a long leg cast for a four month period.  The cast was not well applied and the ankle was fixed in a downward position (plantar flexion) for that entire duration.  Secondary capsular contractures formed and inadequate attention was paid to the problem following removal of the cast by the physiotherapist.

At the end of an 18 month period, the ankle joint remained quite stiff and the capsular contractures appeared to be solid.

Whilst uncommon, this is a recognised sequel to the inappropriate positioning of the joint for a prolonged period without proper rehabilitation.  Although the ankle itself may not have been injured at the time, the sequence of events which has followed renders the ankle malady as being of a compensable nature.  The causative link is indirect but real.

General Advice

Hysterical Orthopaedics

3 (b)

The word “hysteria” has specific psychiatric connotations.  Patients who are thought to suffer with hysteria sometimes present with so-called conversion disorders.

In the orthopaedic paradigm, patients may present with fixed contractures, for example of a hand or fingers, as a result of complete non-use for a protracted period.  That period can be in the form of years.  As a result of holding the hand in a curled-up position across the front of the torso, permanent contractures form and the digits can simply not be extended.  I have seen such a case.


How Does it Arise?


Although there may have been a precipitating injury, it is often of relatively minor extent.  It is not the sort of injury that would result in such a devastating outcome.  Instead, rather than being of a physical origin, the malady is more likely to be of a psychiatric origin.

That does not mean that the patient is not impaired and neither does it mean that the patient is not seriously disabled.  It simply means that the causative inciting agent has complex overtones other than those of a purely orthopaedic nature.

You should be seeking the advices of your favourite clinical psychiatrist in fully assessing these cases.

Lead Article

Social and Recreational Activities


Whilst most attention in personal injury and medical negligence claims focusses upon impairment assessments, causation, economic loss and future therapeutic needs, it is also reasonable to assess losses of social and recreational enjoyment that may follow a traumatic incident.


Some plaintiffs are extremely active and were so up until the time of their subject injury.  Many are outstanding golfers, engage in triathlons or regularly have overseas jaunts for snow skiing and touring.  A serious injury with ongoing impairments and disabilities may permanently diminish or even remove the ability for the injured plaintiff to return to some semblance of lifestyle activity.

Your orthopaedic expert is well positioned to assist with this analysis.  Whilst some injuries are truly irretrievable, the adverse effects of others can be diminished quite significantly by the provision of splints, braces, orthoses and prostheses.  A stiff, painful ankle could be splinted, allowing a return to some limited bush walking and hiking.  Advice can also be offered on modified techniques to accomplish tasks which were previously taken for granted.  The provision of a motorised golf buggy for example may allow a previously keen golfer to make at least a limited return to that favoured recreational pursuit.

At a personal level, I believe that addressing this important issue of social and recreational capacity is a vital part of any medicolegal report.

It is vital that the expert listens to the plaintiff.  Establishing an easy rapport facilitates the gleaning of these personal details.  Some patients are more adaptable than others.  Relatively trivial injuries to some may invoke major lifestyle changes for others.

Separating genuine complaints from self-serving exaggeration is equally vital.  You will benefit from engaging an expert who is experienced, sympathetic and realistic.

General Advice

The Expert in Court – How Should She/He Behave?

3 (a)


Just as you are likely to feel uncomfortable in an operating theatre (as a patient or as an observer), so do most medical experts feel uncomfortable in a Court room.  It is an alien concept for them to relinquish control and be under close scrutiny and direction.  In addition, some Counsel when conducting cross examination can be quite barbarous.

The Expert’s Coat of Armour

It is best that your expert has initially produced an objective, transparent and easily understandable medicolegal opinion.  It is also vital that your expert remains patient and calm, and does not respond to the barbs with equal aggression.  The expert should not be polarised but instead, accurately view his role as being there to assist the Court in the understanding of matters within his domain.  He is not there to influence, coerce, judge or otherwise entertain.

A lawyer questioning a suspect

Humble confidence, clarity of thought, economical explanations and equanimity are all vital qualities.  This is the expert you should be choosing.

I relish the opportunity to appear personally in Court.  Telephone evidence is less disruptive but not so fulfilling.  Mind you, I have experienced some very bumpy rides!  There is an old saying that good Court room performance comes from experience.  Unfortunately, some experience comes from poor Court room performances.