By: John T. Gill, MD
President, Texas Orthopaedic Association

TOA 2007 Socioeconomic Summit & The Business of Orthopaedics
The Driskill Hotel, Austin, Texas
August 10th & 11th, 2007

The cut-off date for the group room rate is TODAY, Monday, July 23rd!

Title: Complications following knee surgery
By: TMLT Risk Management Department

The following closed claim studies are based on actual malpractice claims from Texas Medical Liability Trust. These cases illustrate how

action or inaction on the part of physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physicians’ defensibility. The ultimate goal in presenting these cases is to help physicians practice safe medicine. An attempt has been made to make the material more difficult to identify. If you recognize your own claim, please be assured it is presented solely to emphasize the issues of the case. 

Presentation
A 28-year-old man came to the emergency department two days after a water skiing accident. His chief complaint was severe knee pain. The emergency medicine physician diagnosed bruised ribs, and possible meniscus tear and knee sprain. He instructed the patient to follow up with his orthopedic physician in 2 to 3 days. The ED x-rays were sent to the patient’s preferred orthopedic office, where he had been treated for previous sports-related injuries. The patient made an appointment two weeks later.

Physician action
The orthopedic physician, the defendant in this case, determined that an MRI was necessary in order to make an accurate diagnosis. The MRI, which was conducted on site, showed a torn anterior cruciate ligament with medial meniscus involvement. Outpatient surgery to repair the knee was scheduled for the next afternoon. The surgery went well, and the patient was discharged with his girlfriend as the primary caretaker. Written discharge instructions were reviewed and provided to the patient and girlfriend. The instructions included his postoperative follow-up appointment and prescriptions for pain medication and an antibiotic. The patient was told to return in 3 days, and to call the office if he experienced any of the signs or symptoms of infection as reviewed in the discharge instructions.

Three days later, the patient did not return for his appointment, and a phone call was made to his home. The patient stated that he did not have a ride to his appointment and that he would come in the next day. The office nurse asked the patient how he was doing, and was told that other than some foot swelling and numbness in his toes, he felt fine. The nurse noted this in the medical chart, and expressed to the patient how important his follow-up appointment was. She also notified the physician of the missed appointment and the swelling and numbness mentioned by the patient. The physician contacted the patient herself at the end of the day to express her concerns and stress the importance of follow up. This phone call was documented in the chart.

The patient came to the ED that night with fever, knee and foot pain, swelling, and obvious signs of wound infection. There was substantial dehiscence at the suture line. He told the ED staff that he had stopped taking the antibiotic on the second postop day because it made him nauseated. He also mentioned “banging” his leg around in the boat when he went out with his friends a few days earlier. The patient was admitted and seen by the orthopedic physician the next morning. He was taken to the OR for further evaluation and repair of the knee.

Allegations

• improper performance of the initial surgical repair
   

• failure to instruct and communicate

Disposition
Expert review of this case included a review of the surgeon’s preoperative examination and assessment, the operative note, and discharge instructions. Taking the patient’s accountability into consideration, and the fact that the office procedures for preoperative appointments had been well documented, the plaintiff’s attorney decided not to pursue this case any further because it was without merit.

Legal implications
Fortunately for this physician, her office protocol for preoperative patients was written and followed. The informed consent discussion was completed in the office prior to outpatient surgery. The discussion was documented, and a copy was provided to the patient. In addition, this physician used pre-printed consent forms for surgical procedures that included the risks, benefits, and alternatives to treatment. She did not rely solely upon the outpatient facility or staff to obtain the patient’s consent on her behalf. She also made a brief note in the chart that the consent discussion was done with the girlfriend present and the patient understood and wished to proceed with the knee surgery.

Most favorable for this physician was the documented office protocol, which was consistently followed for all postoperative patients. The fact that discharge instructions provided by the physician to the patient were orally reviewed prior to the surgery day, well documented in the medical chart, and included the importance of medication compliance, follow-up appointments, and instructions to call if there were problems, greatly assisted in the quick dismissal of this claim.

Risk management considerations

• Evaluate and enhance communication with patients and family members. Communication is the primary way to ensure efficient outpatient management, proper follow-up, effective informed consent, and satisfactory patient rapport. All of these areas have been implicated in claims when a failure in communication arises.
   

• Keep in mind the most common areas of potential diagnostic difficulties. Diagnostic problems most frequently involve trauma-related issues, including hip fractures, shoulder dislocations (especially posterior), and hand injuries, including nerve and tendon lacerations as well as hand fractures that require extra attention (special splinting or surgery). Failure to diagnose also commonly involves testing techniques; poor quality or inadequate views on x-ray.
   

• Develop practice protocols to guarantee correct anatomic site/structure. This includes appropriate level for spinal surgery, appropriate digit for hand and foot surgery, and appropriate side (right/left) for extremity surgery.

Analysis of more than 1,000 orthopedic closed claims reveals that the majority of claims with no clearly identifiable risk management issue had an outcome in favor of the defense. However, when a risk management issue was identified, the plaintiffs prevailed in a majority of the cases. Common pitfalls include operating on the wrong anatomic site, improper performance of the procedure, missed or delayed diagnosis, misuse of equipment, and finally, poor communication with patients.

By: Mignon McGarry
TOA Legislative Advocate / Memos: Tue July 17, 2007
TOA Online Version: All Memos

July 17th, Tuesday
Here in Austin, the Capitol is quiet as the action moves to the rulemaking process at state agencies. Many times, a piece of legislation