Orthopedic Medical Legal Advisor

Risk management: Arguments for surgical complications explained

One of the more frequent malpractice claims filed against orthopedic surgeons involves an injury that occurs during or as a result of elective surgery. These claims are often defended on the basis that the injuries were “complications” of the surgery. The plaintiffs’ response is always that the injury was not a complication, but the result of medical negligence.

The outcomes of these malpractice cases often turns on the definition of an excusable complication (i.e., one where the surgeon is not legally liable for the patient’s injury). Many surgeons would like to broadly define “complication” to mean that if the injury has occurred in the past to other patients under similar circumstances, the occurrence of the injury in the present case is not the result of a negligent act. These defenses are usually supported by data from the medical literature citing the frequency of the complication. Some physicians refer to such adverse outcomes as “known complications” that were understood and accepted by all parties before surgical intervention.

For example, general surgeons who are sued for injuries to the spleen cite data that these injuries occur in 5% of all upper abdominal procedures. The inference to be drawn from this statistic is that since these injuries occur in 5% of upper abdominal procedures, all injuries to the spleen that occur during upper abdominal surgery must occur in the absence of negligence.

The difficulty with this inference is that no one knows if the 5% rate of splenic injury represents the rate of unavoidable injuries, the rate of surgical negligence or a combination of these. The most dramatic example in orthopedics of the limitations of this inference involves wrong-sided surgery. Could anyone seriously argue that because there is a known rate of wrong-sided surgery, that when it occurs, it is an excusable complication? Yet, surgeons will agree that wrong-sided surgery does occur, despite the institution of ever stricter guidelines such as the “time-out” before the incision is made.

Resolving when a complication is compensable may rise or fall on the answer to the following question: “Was the surgical complication avoidable if the surgeon used reasonable care and was diligent during the course of surgery?” In the analysis of a medical malpractice case, this is a threshold question that helps parties understand if an adverse outcome was simply a matter of poor luck and part of the spectrum of “known complications.”

What follows is a case example of a surgical injury to the saphenous nerve, presented in order to better illustrate the earlier mentioned principle.

Case situation

A man in his 20s injured his knee while playing football. One year later, he noted buckling and related mechanical symptoms and saw an orthopedic surgeon. He had an MRI that demonstrated a possible medial meniscus tear. Two months later, the surgeon diagnosed “medial plica syndrome with impingement” and arthroscopically performed a medial plica excision and partial synovectomy. The patient did well until 3 years later, when he twisted his right knee causing pain and some buckling. Although another MRI demonstrated a tear of the posterior third of the horn of the medial meniscus through to the articular surface, at arthroscopy the tear was again found “not through and through.” However, because of the length of the tear, the surgeon felt it should be repaired. A few weeks later, he returned to the operating room to repair the meniscus since equipment for meniscus repair was not available at the time.

Discuss in OrthoMind

Instruments were placed into the lateral portal, but because of the posterior nature of the tear, the surgeon could not pass across the notch to reach the area of the tear. Therefore, he made a medial incision over the palpable joint line posteriorly, identified the saphenous nerve and then incised the first layer of the investing fascia. He dissected around the medial head of the gastrocnemius, which he palpated by dorsiflexion and plantar flexion of the ankle, and then placed a retractor deep behind the knee to protect the saphenous nerve. He then passed the arthroscopic cannula through the medial portal. A meniscal rasp and a synovial shaver were passed into the undersurface and over the top of meniscus. In repairing the meniscus, he dictated that he, “increased the prebent curve of the needle” as it passed through the posterior capsular structures medially to the medial head of gastrocnemius. He then pulled the needle through and made a second pass. A total of three sutures were placed. He confirmed the adequacy of the repair by pulling on the sutures and probing the meniscus.

Within 2 days, the patient experienced intense burning, diminished sensation and tingling in the distribution of the saphenous nerve. Two weeks later, the surgeon noted that the patient complained of knee pain and numbness in the saphenous nerve distribution. The surgeon diagnosed and documented, “saphenous nerve injury neuropathy, rule out traction.” At 5 weeks, since the patient’s symptoms had progressed, the surgeon explored the knee to, “rule-out nerve laceration vs. the sutured nerve.”

He traced the saphenous nerve distally through the scar tissue. He noted some flattening of the nerve distally, but stated that it did not appear lacerated. He concluded that the nerve was not repairable. Two months later, the patient still had numbness and quadriceps inhibition. He referred the patient to a pain control center where the diagnosis of reflex sympathetic dystrophy was confirmed.

Six months later, another surgeon explored the saphenous nerve, noting that the nerve had been cut, “in its division along the medial border of the knee.” At the cut section, a neuroma was adherent to the underlying subcutaneous tissue. Because he could not identify the distal segment of the nerve, he excised the neuroma, but could not repair the nerve.

The patient underwent numerous treatments at a pain control center including lumbar sympathectomy and ended up with a generally unsatisfactory outcome.

The alleged negligence

This patient sued the first orthopedic surgeon for negligence. The plaintiff’s counsel argued that the patient did not need the repair. The patient had done well with conservative treatment. After the second MRI, it is not clear why a diagnostic arthroscopy alone was performed. It would probably have made more sense to address the tear at the time of that surgery either by planning to do nothing further or performing a partial removal of the torn meniscus. This patient was subjected to another surgical procedure and another anesthesia.

Further, the surgeon’s indications for the procedure were somewhat vague. His office notes suggest that he recommended surgery based on only the length of the tear. In general, tears may be considered for repair if they are causing instability (not clearly documented in this case), if they are traumatic rather than degenerative, and if they are in the peripheral third of the meniscus (where they have a better chance of healing). At the second arthroscopy, the surgeon had probed the tear and found it was not through and through. Was the tear the true cause of the patient’s problem?

While arthroscopy has a relatively low risk of complications, repair of a meniscus is more technically demanding and has more associated complications. Medial meniscal repairs are known to pose risks to the saphenous nerve. This surgeon was obviously cognizant of the risk and took some steps to avoid injury. Despite these steps, the saphenous nerve still sustained an injury.

Because of concerns for injury, there have been advances in meniscal repair techniques including the development of meniscal arrows. These are passed wholly within the joint space, thus done under direct visualization and out of harm’s way. Here the surgeon knew that the saphenous nerve was in potential danger. He assumed that the nerve was behind the retractor without having clearly visualized its course. This proved to be a risky assumption.

On the stand, the surgeon claimed that the nerve injury occurred during the incision, the dissection or the retraction. There was no way to tell when the nerve was injured. He argued that it was, therefore, unavoidable. The patient’s attorneys rebutted that contention in the following ways:

  • If the injury occurred during incision, the plaintiff claimed that the surgeon was careless since incisions are made all the time near nerves without injuring them.
  • If injury occurred during the dissection, the plaintiff claimed that the surgeon was not experienced enough in dissecting nerves or recognizing direct injury to nerves.
  • Finally, if the injury occurred during the retraction, the plaintiff claimed that either the surgeon did not exercise enough caution in identifying the course of the nerve or he retracted so vigorously that he caused the damage.

The plaintiff’s counsel conceded there are some surgeries where a nerve traction injury is inherent to the procedure, meaning that it occurs even when the surgery is performed flawlessly. This might be the case when a tumor is being removed from around a nerve. That is a risk that should be disclosed to the patient, yet the patient might still consent to having the tumor removed. In the arthroscopy case, the patient’s attorneys argued that the risk to the saphenous nerve is not inherent and the surgeon must be mindful of the “first do no harm” principle.

What do you think about the following questions? Share your insights with us on www.OrthoMind.com:

  • Was the saphenous nerve injury in this case avoidable?
  • If not, why not?
  • If it was avoidable, what actions could the surgeon have taken to prevent the injury to the saphenous nerve?
  • Can anything be learned from this case to prevent similar injuries to patients in the future?
  • What constitutes an excusable or justified complication?
  • Does the mere fact that an injury is known to occur during the course of an operative procedure conclusively establish the absence of negligence?
  • If not, what criteria should be used to differentiate a surgical complication from surgical negligence?
  • Examine the patient’s attorney arguments rebutting the contention that the nerve injury was avoidable. If taken at face value, do those arguments imply that all nerve injuries during elective surgery must occur from negligence? How would you counter those arguments to convince a jury otherwise?
For more information:
  • B. Sonny Bal, MD, JD, MBA, is an associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
  • Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California, and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.

One of the more frequent malpractice claims filed against orthopedic surgeons involves an injury that occurs during or as a result of elective surgery. These claims are often defended on the basis that the injuries were “complications” of the surgery. The plaintiffs’ response is always that the injury was not a complication, but the result of medical negligence.

The outcomes of these malpractice cases often turns on the definition of an excusable complication (i.e., one where the surgeon is not legally liable for the patient’s injury). Many surgeons would like to broadly define “complication” to mean that if the injury has occurred in the past to other patients under similar circumstances, the occurrence of the injury in the present case is not the result of a negligent act. These defenses are usually supported by data from the medical literature citing the frequency of the complication. Some physicians refer to such adverse outcomes as “known complications” that were understood and accepted by all parties before surgical intervention.

For example, general surgeons who are sued for injuries to the spleen cite data that these injuries occur in 5% of all upper abdominal procedures. The inference to be drawn from this statistic is that since these injuries occur in 5% of upper abdominal procedures, all injuries to the spleen that occur during upper abdominal surgery must occur in the absence of negligence.

The difficulty with this inference is that no one knows if the 5% rate of splenic injury represents the rate of unavoidable injuries, the rate of surgical negligence or a combination of these. The most dramatic example in orthopedics of the limitations of this inference involves wrong-sided surgery. Could anyone seriously argue that because there is a known rate of wrong-sided surgery, that when it occurs, it is an excusable complication? Yet, surgeons will agree that wrong-sided surgery does occur, despite the institution of ever stricter guidelines such as the “time-out” before the incision is made.

Resolving when a complication is compensable may rise or fall on the answer to the following question: “Was the surgical complication avoidable if the surgeon used reasonable care and was diligent during the course of surgery?” In the analysis of a medical malpractice case, this is a threshold question that helps parties understand if an adverse outcome was simply a matter of poor luck and part of the spectrum of “known complications.”

What follows is a case example of a surgical injury to the saphenous nerve, presented in order to better illustrate the earlier mentioned principle.

Case situation

A man in his 20s injured his knee while playing football. One year later, he noted buckling and related mechanical symptoms and saw an orthopedic surgeon. He had an MRI that demonstrated a possible medial meniscus tear. Two months later, the surgeon diagnosed “medial plica syndrome with impingement” and arthroscopically performed a medial plica excision and partial synovectomy. The patient did well until 3 years later, when he twisted his right knee causing pain and some buckling. Although another MRI demonstrated a tear of the posterior third of the horn of the medial meniscus through to the articular surface, at arthroscopy the tear was again found “not through and through.” However, because of the length of the tear, the surgeon felt it should be repaired. A few weeks later, he returned to the operating room to repair the meniscus since equipment for meniscus repair was not available at the time.

Discuss in OrthoMind

Instruments were placed into the lateral portal, but because of the posterior nature of the tear, the surgeon could not pass across the notch to reach the area of the tear. Therefore, he made a medial incision over the palpable joint line posteriorly, identified the saphenous nerve and then incised the first layer of the investing fascia. He dissected around the medial head of the gastrocnemius, which he palpated by dorsiflexion and plantar flexion of the ankle, and then placed a retractor deep behind the knee to protect the saphenous nerve. He then passed the arthroscopic cannula through the medial portal. A meniscal rasp and a synovial shaver were passed into the undersurface and over the top of meniscus. In repairing the meniscus, he dictated that he, “increased the prebent curve of the needle” as it passed through the posterior capsular structures medially to the medial head of gastrocnemius. He then pulled the needle through and made a second pass. A total of three sutures were placed. He confirmed the adequacy of the repair by pulling on the sutures and probing the meniscus.

Within 2 days, the patient experienced intense burning, diminished sensation and tingling in the distribution of the saphenous nerve. Two weeks later, the surgeon noted that the patient complained of knee pain and numbness in the saphenous nerve distribution. The surgeon diagnosed and documented, “saphenous nerve injury neuropathy, rule out traction.” At 5 weeks, since the patient’s symptoms had progressed, the surgeon explored the knee to, “rule-out nerve laceration vs. the sutured nerve.”

He traced the saphenous nerve distally through the scar tissue. He noted some flattening of the nerve distally, but stated that it did not appear lacerated. He concluded that the nerve was not repairable. Two months later, the patient still had numbness and quadriceps inhibition. He referred the patient to a pain control center where the diagnosis of reflex sympathetic dystrophy was confirmed.

Six months later, another surgeon explored the saphenous nerve, noting that the nerve had been cut, “in its division along the medial border of the knee.” At the cut section, a neuroma was adherent to the underlying subcutaneous tissue. Because he could not identify the distal segment of the nerve, he excised the neuroma, but could not repair the nerve.

The patient underwent numerous treatments at a pain control center including lumbar sympathectomy and ended up with a generally unsatisfactory outcome.

The alleged negligence

This patient sued the first orthopedic surgeon for negligence. The plaintiff’s counsel argued that the patient did not need the repair. The patient had done well with conservative treatment. After the second MRI, it is not clear why a diagnostic arthroscopy alone was performed. It would probably have made more sense to address the tear at the time of that surgery either by planning to do nothing further or performing a partial removal of the torn meniscus. This patient was subjected to another surgical procedure and another anesthesia.

Further, the surgeon’s indications for the procedure were somewhat vague. His office notes suggest that he recommended surgery based on only the length of the tear. In general, tears may be considered for repair if they are causing instability (not clearly documented in this case), if they are traumatic rather than degenerative, and if they are in the peripheral third of the meniscus (where they have a better chance of healing). At the second arthroscopy, the surgeon had probed the tear and found it was not through and through. Was the tear the true cause of the patient’s problem?

While arthroscopy has a relatively low risk of complications, repair of a meniscus is more technically demanding and has more associated complications. Medial meniscal repairs are known to pose risks to the saphenous nerve. This surgeon was obviously cognizant of the risk and took some steps to avoid injury. Despite these steps, the saphenous nerve still sustained an injury.

Because of concerns for injury, there have been advances in meniscal repair techniques including the development of meniscal arrows. These are passed wholly within the joint space, thus done under direct visualization and out of harm’s way. Here the surgeon knew that the saphenous nerve was in potential danger. He assumed that the nerve was behind the retractor without having clearly visualized its course. This proved to be a risky assumption.

On the stand, the surgeon claimed that the nerve injury occurred during the incision, the dissection or the retraction. There was no way to tell when the nerve was injured. He argued that it was, therefore, unavoidable. The patient’s attorneys rebutted that contention in the following ways:

  • If the injury occurred during incision, the plaintiff claimed that the surgeon was careless since incisions are made all the time near nerves without injuring them.
  • If injury occurred during the dissection, the plaintiff claimed that the surgeon was not experienced enough in dissecting nerves or recognizing direct injury to nerves.
  • Finally, if the injury occurred during the retraction, the plaintiff claimed that either the surgeon did not exercise enough caution in identifying the course of the nerve or he retracted so vigorously that he caused the damage.

The plaintiff’s counsel conceded there are some surgeries where a nerve traction injury is inherent to the procedure, meaning that it occurs even when the surgery is performed flawlessly. This might be the case when a tumor is being removed from around a nerve. That is a risk that should be disclosed to the patient, yet the patient might still consent to having the tumor removed. In the arthroscopy case, the patient’s attorneys argued that the risk to the saphenous nerve is not inherent and the surgeon must be mindful of the “first do no harm” principle.

What do you think about the following questions? Share your insights with us on www.OrthoMind.com:

  • Was the saphenous nerve injury in this case avoidable?
  • If not, why not?
  • If it was avoidable, what actions could the surgeon have taken to prevent the injury to the saphenous nerve?
  • Can anything be learned from this case to prevent similar injuries to patients in the future?
  • What constitutes an excusable or justified complication?
  • Does the mere fact that an injury is known to occur during the course of an operative procedure conclusively establish the absence of negligence?
  • If not, what criteria should be used to differentiate a surgical complication from surgical negligence?
  • Examine the patient’s attorney arguments rebutting the contention that the nerve injury was avoidable. If taken at face value, do those arguments imply that all nerve injuries during elective surgery must occur from negligence? How would you counter those arguments to convince a jury otherwise?
For more information:
  • B. Sonny Bal, MD, JD, MBA, is an associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
  • Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California, and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.