The Importance of Being Expert

Case history

The surgeon saw the patient on 8 August 2005. On the basis of the patient’s symptoms, clinical signs and x-ray findings, the surgeon made a diagnosis of advanced degenerative disease of the left hip. The surgeon discussed treatment options with the patient, these being limited to putting up with the pain or undergoing a hip arthroplasty. The surgeon discussed the nature of the surgery, and the benefits and risks of the procedure. He also provided the patient with a booklet about hip arthroplasty, which included information about the benefits and risks of the procedure. The patient was keen to undergo the hip surgery as soon as possible. 

On 9 September 2005, the patient was admitted to hospital for the purpose of a left hip arthroplasty. The surgical procedure was uneventful. The orthopaedic surgeon’s routine post-operative orders included Clexane 40mg nocte, the use of calf compression devices and intravenous antibiotics for 48 hours post- operatively. 

On the first post-operative day, the patient complained of left thigh, calf and foot pain. He was reviewed by the registrar who noted there were no neurovascular changes in the lower limb. The orthopaedic surgeon reviewed the patient two days post-operatively, on 11 September 2005. On examination, he found the patient had a slightly swollen left foot and calf. There appeared to be decreased sensation in his toes, ball of the foot and left leg. The patient was booked for a Doppler ultrasound that afternoon. This did not reveal any evidence of a deep vein thrombosis (DVT), but the arterial Doppler studies showed widespread atheroma in the left common femoral and superficial femoral arteries. A vascular surgeon was consulted who did not recommend any specific treatment. The patient continued to complain of ‘cramps’ in his left lower leg. On 14 September 2005, the patient’s left foot and ankle area were noted to be inflamed and swollen, and there was reduced power in the foot muscles. Peripheral pulses remained palpable. Over the next few days the patient’s foot remained much the same. He had pain in his left foot but was able to get up and walk with the aid of a walking frame.

On 21 September 2005, the patient complained of chest pain. It was thought that the patient may have had a pulmonary embolus (PE) and a V/Q scan was arranged. The dose of Clexane was increased to 80mg bd. The V/Q scan was reported as showing an intermediate probability of a PE. A physician was consulted and the patient was commenced on Warfarin. Three weeks after the hip arthroplasty, the patient was transferred to a rehabilitation facility for ongoing management. 

The patient ultimately developed significant weakness in the left ankle, and clawing of the toes of his foot. There was dysaesthesia and hyperaesthesia of the left lower leg, consistent with a complex regional pain syndrome. The patient was reviewed by a neurologist who performed electrophysiological studies. These revealed absent digital motor responses from both the peroneal and tibial nerves in the left leg. The neurologist thought this might have been secondary to traction or possibly a vascular injury to the nerves. 

Medico-legal issues

In August 2008, the orthopaedic surgeon received a Statement of Claim alleging negligence in his management of the patient. The Statement of Claim alleged that following the hip replacement, the patient (now a plaintiff) developed a DVT and sustained “injury, disability, loss and damage” as a result of the DVT. The particulars of negligence included:

• Failing to advise the plaintiff to wear PEG or other compressive stockings post-surgery;
• Failing to ensure that the plaintiff was given a calf compression pump post-surgery;
• Failing to closely observe the plaintiff post-operatively which observation would have revealed that he was developing signs and symptoms consistent with a DVT;
• Ignoring the plaintiff’s complaints of severe pain in his left leg;
• Failing to monitor the plaintiff’s condition; and
• Failing to administer adequate anticoagulant therapy post-surgery.

Attached to the Statement of Claim was an expert report written by a general physician. The physician was of the opinion that the patient had developed a DVT postoperatively and that this was the cause of his ongoing left leg problems. The expert was critical that no attempts were made pre-operatively to prevent the development of a DVT. He stated that “no use was made of compression stockings or of a calf compression apparatus and no anticoagulant was administered”. The report went on to state that “it is well recognised that lower limb orthopaedic surgery carries a high risk of deep vein thrombosis and it is normal and routine best practice to try to prevent this from occurring because of the subsequent morbidity and mortality. Such practice includes the pre-operative use of compression stockings, of calf compression apparatus and pre-operative anticoagulation with Clexane. Many surgeons use all three measures”. His report concluded with a statement that the orthopaedic surgeon “was seriously remiss in not ensuring that preventive measures were commenced preoperatively and thus he was negligent in his duty of care towards the patient”.

On receipt of the Statement of Claim, the orthopaedic surgeon immediately contacted MDA National for assistance. MDA National instructed solicitors to protect
his interests in relation to the claim. Two weeks later, a meeting was arranged between the surgeon, the solicitors and the MDA National Claims Manager to obtain a detailed statement and to consider the allegations made against  the surgeon. The orthopaedic surgeon confirmed that there was no evidence that the patient had, in fact, developed a DVT post-operatively and he was perplexed by a number of the statements made by the plaintiff’s expert.  

After obtaining a detailed statement from the surgeon, MDA National’s solicitors sought an independent expert report from another orthopaedic surgeon. The expert report concluded that the “professional service provided by the orthopaedic surgeon to the patient would be widely accepted in Australia by his peers as constituting competent professional practice”. The expert was also provided with a copy of the plaintiff’s expert report to comment upon. The orthopaedic surgeon opined that there was no evidence that using pre-operative precautions for DVT, such as Clexane or stockings, has any effect on the incidence of post-operative DVT. Indeed, the surgeon commented that the use of Clexane pre-operatively increases the risk of haematoma in the joint, and the risk of spinal cord haematoma in the event of epidural or spinal anaesthesia. He reported that the physician’s comments in this regard were “completely false”. He further noted that the physician’s comment that “calf pain post-operatively is considered to be a DVT until proven otherwise” was “a fair statement except when it is proven not to be a DVT. The patient had a Doppler examination as soon as he complained of calf pain and no DVT was found”. The orthopaedic expert went on to comment that the physician was unlikely to have been involved in major joint replacement surgery. He also queried whether the physician had been acting in a clinical environment recently. 

In November 2008, MDA National’s solicitors served the expert orthopaedic report on the plaintiff’s solicitors with an offer to discontinue the claim on an own costs basis (each party to the proceedings to bear their own legal costs to date). The plaintiff’s solicitors rejected this offer and served a supplementary report from their physician expert. This report reiterated the statement that when a patient complains of calf pain post-operatively it is considered to be a DVT until proven otherwise. The report concluded “it is overwhelmingly clear that the patient developed a DVT within 24 hours of his hip replacement. His symptoms of pain were not immediately communicated to the surgeon and correct treatment was not initiated immediately. This resulted in progression of the DVT to a pulmonary embolus. The contention that a negative Doppler proved that a DVT had not occurred is not only incorrect, but indefensible”. 

MDA National’s solicitors sought additional expert opinion from a vascular surgeon. The vascular surgeon reported that the patient’s post-operative symptoms were not typical of a DVT. He further noted that subsequent investigations by venous diagnostic ultrasound showed no evidence of a DVT. He stated that ultrasound diagnosis was about 95% accurate. The expert went on to state “for a DVT to cause swelling of the calf and foot with possible nerve compression, then the DVT would need to be extensive and would be readily diagnosed by a competent ultrasonographer”. He also noted that it was unlikely that the patient had suffered a PE because the patient’s scan was equivocal and, in the absence of a lower limb DVT, it was improbable that a PE occurred. The vascular surgeon
thought that the patient’s ongoing leg problems were more consistent with a nerve lesion. With regard to the expert opinion provided on behalf of the plaintiff, the vascular surgeon noted that the physician was not a vascular or ultrasound specialist, and that many of the comments he made in the report were “simply not correct”. 

In June 2009, this expert opinion was served on the plaintiff’s solicitors with a formal Offer of Compromise for a verdict for our orthopaedic surgeon Member, with each party to bear its own costs. Under Court rules, the Offer of Compromise was open for a period of 28 days from the date of the offer. Two weeks later, the plaintiff’s solicitors accepted the offer, bringing the claim to a conclusion. MDA National’s legal defence costs were approximately $30,000. 

Discussion

In this claim, it was apparent that the plaintiff had suffered left leg problems post-operatively, but the mechanism of injury remained somewhat unclear. However, what was clear was that the patient had not suffered a DVT post-operatively. Nevertheless, the plaintiff’s expert was mistakenly of the view that the plaintiff had suffered a DVT and his solicitors had based their pleadings in the Statement of Claim on the fact that his injuries were the result of a DVT. On this basis alone, the claim was doomed to fail. 

Ultimately, service of well reasoned expert reports by an orthopaedic surgeon and a vascular surgeon convinced the plaintiff and his solicitors that there was absolutely no merit to the claim.