Consent

Consent issues feature in many cases, but over 10% of cases involved allegations centred on inadequate consent.

The consent process is paramount in managing the patient's expectations. Failure to either manage those expectations or adequately explain the risks and benefits of the procedure was a common theme across the claims. In a number of cases, it was alleged the risk of a worse outcome or long-term damage, including nerve damage, wasn't properly explained.

In other cases, patients alleged they consented to unnecessary procedures where symptoms were likely to resolve with conservative management rather than surgical intervention.

Consent cases are often difficult to defend, and it's vital to be aware of the impact of recent judgments such as Montgomery v Lanarkshire Health Board (2015) and the updated GMC guidance on Decision making and consent.

Note keeping is also vital. Without a thorough contemporaneous record of the detailed discussion with the patient about potential risks and benefits, a surgeon can find it difficult to defend allegations relating to consent, even where their usual practice is to discuss such issues.

Nerve damage featured in a number of claims alleging inadequate consent. In one case, a patient underwent a total hip replacement, but alleged the surgery was negligent as the surgeon failed to protect and damaged the sciatic nerve during surgery, and failed to discuss or get the patient's consent regarding the risk of nerve damage.

Post-operatively, the patient suffered foot drop and neuralgia, leading to further surgery to attempt to repair the nerve. No admissions were made regarding inadequate consent, but experts stated that neural damage was a rare but well recognised complication of this surgical procedure. It was admitted the surgery itself was performed negligently and the claim settled for more than £270,000 in compensation and legal costs.

Joint replacement procedures

Looking at the types of procedures leading to claims, joint replacements are among the most common. Unlike other surgical disciplines, where dissatisfaction may arise from the cosmetic outcome, joint replacements - particularly of the hip or knee - can result in significant functional difficulties. This can accelerate the need for revision surgery or osteoarthritic changes. Numerous claims also arise from failed joint replacements requiring revision surgery.

Allegations about the causes of failed surgery include:

incorrect sizing or choice of implant
poor pre-operative preparation
poor operative technique
postoperative infection that was difficult to eradicate
defective parts/components
incorrect initial diagnosis or contraindicated surgery.

The bare bones of orthopaedic claims

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The bare bones of orthopaedic claims