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.