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!’

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.

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!

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.

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.

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

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.

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.