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
72-year-old, long-term patient came to her orthopedic surgeon with
current need for a right total hip replacement. Her medical history
included appendectomy, hysterectomy, cholecystectomy, Morton’s neuroma
and arthroplasties of both knees. Previous orthopedic procedures done by
the defendant included replacement of the left hip, rotator cuff repair,
and thumb joint surgery. The patient had good results from all previous
procedures. Currently, x-rays of the right hip showed severe
degenerative changes. Additionally, the patient complained of lumbar
pain. She was instructed to return to the office after her back had been
treated with a series of epidural injections. In February, the office
record included a history and physical for future total right hip
replacement.
Physician action
On March
25, the defendant performed a total arthroplasty of the right hip. A
posterior approach was used and the femur was reamed. The newly-trained
operating room nurse, also a defendant, handed the physician a porous
implant instead of a cement implant. Although the nurse handed him the
implant within the clearly labeled box, the defendant did not notice it
was the wrong model. After injecting cement into the cavity, he placed
the incorrect implant. The cement prematurely hardened before the
defendant realized the error. It then became necessary to remove the
stem from the hardened cement.
To accomplish this,
the incision was extended and a rectangular window was made in the
lateral cortex of the femur. The implant was removed and extensive
removal of the cement was carried out. At least one consultant reviewer
indicated that procurement of a proper implant from an off-site provider
prolonged this surgery to more than seven hours. Ultimately, the implant
operation was successfully completed.
Following the
surgery, the patient complained of increasing pain in the right hip.
X-ray examination indicated that the greater trochanter was fractured.
In April, she was returned to surgery for open reduction and internal
fixation of the greater trochanter. Four weeks later, x-rays revealed
the greater trochanter had migrated proximally. In June, another on-call
orthopedic surgeon reduced the dislocation and applied an abduction
brace. By March the following year, the greater trochanter had pulled
loose and retracted.
Almost two years
after the original surgery, another orthopedic surgeon performed a total
hip revision including an open reduction and fixation of the greater
trochanter. Latest information from that surgeon indicates that the
patient is currently healing well, but still uses a walker.
Allegations
Plaintiff
experts allege that the initial implant selected was incorrect.
Correction of this error resulted in the cutting of a window out of the
lateral cortex of the femur to remove the cement. This weakened the
femur and permanently damaged the greater trochanter. Ultimately,
associated complications included additional surgical time, additional
surgical procedures, loss of strength of the femur, and a failed hip.
Critical consultants indicated that her end result should have been a
good hip replacement without pain and no limp. Instead, she will have
permanent limp and pain. Although the hip replacement is solidly fixed,
the patient has permanent weakness and will require the use of a walker
for the rest of her life.
Legal implications
Despite
what may seem to be an obvious medical error, this case was complex.
Medical consultants were supportive of the defendant in several ways.
Retained defense experts indicated that fracture of the greater
trochanter is a known complication of hip replacement. The defendant did
a very good job in completing the repair and placing the correct
implant.
Consultants also felt
that the defendant exhibited correct surgical decision making when he
decided to remove the stem from the cement and proceed with a revision
of the total hip replacement. Although uncommon, premature cement
hardening can happen to any orthopedic surgeon.
Supportive
consultants also stated that the length of the procedure (more than
seven hours) reflected additional time needed to remove a solidly
cemented implant, not simply waiting time for the arrival of the correct
implant. Consultants also noted that the special long revision type
implant needed would have to be brought in from an off-site facility
when an unanticipated problem occurs because they are not routinely
maintained in hospital inventory.
Lastly, supportive
consultants agreed with several other areas of correct surgical decision
making. These include windowing the femur, using the long stem for
revision to bypass the window, and reinforcing the femur.
Ultimately, when the
defendant was handed the wrong prosthetic implant by the nurse, he
failed to check it. Consultants state that the two types of prosthetic
implants are and were easily distinguishable from each other. In failing
to ensure insertion of the correct implant, the defendant breached the
standard of care.
Disposition
The
defendant was considered a good witness for himself and this case did
have medical strengths; however, successful defense of this claim was
considered unlikely. This case was settled with the consent of the
physician.
Risk management
considerations
While the
use of the wrong prosthetic implant during this surgical procedure was
paramount, additional risk management considerations factored in as
well. To begin with, medical consultants were critical of the initial
history and physical. It did not record the range of motion of the hips,
a description of the radiological changes in the right hip, the
treatment plan, nor did it document that the risks, benefits, and
alternatives of the proposed surgery were discussed with the patient.
Obtaining consent from patients is a non-delegable task.
Furthermore, the
operative report from the initial surgery was dictated two days after
surgery and lacked pertinent details. This reflects a weakness in record
keeping and created difficulty for consultants in analyzing possible
reasoning for later hip dislocation. Comprehensive and contemporaneous
documentation of all medical care given is recommended.
Additionally, full
disclosure regarding what occurred during surgery was apparently never
made to the patient. Consultants opined that plaintiff’s experts
discovered error details from analysis of billing records. Familiarize
yourself with your facility’s requirements and processes for disclosure
and comply. Research on why patients sue physicians continues to
indicate that they are seeking information they believe is being
withheld.
Lastly, it may be
wise to implement and comply with “time out” activities within your
facility. These few extra preparatory minutes are an opportunity to
ensure that you perform the right surgery on the right patient. If your
facility does not conduct time out activities, you may wish to devise a
checklist system for your practice. Verifying that you have what you
need to complete the procedure may prevent surgical mishaps.
Although it may be
impossible to control all unforeseen surgical events, sound risk
management may increase your defensibility in those instances. Good
preparation, thorough documentation, and compliance with required
disclosure policies are recommended to enhance both the quality of
patient care and your defensibility.
The information and
opinions in this article should not be used or referred to as primary
legal sources nor construed as establishing medical standards of care
for the purposes of litigation, including expert testimony. The standard
of care is dependent upon the particular facts and circumstances of each
individual case and no generalization can be made that would apply to
all cases. The information presented should be used as a resource,
selected and adapted with the advice of your attorney. It is distributed
with the understanding that neither Texas Medical Liability Trust nor
Texas Medical Insurance Company is engaged in rendering legal services.
© 2007 TMLT
