Medical Malpractice - Hip Replacement

[Dagwood]

I had hip replacement surgery in Colorado 14 months ago. I ended up with foot drop as a result of severe nerve damage inflicted during the surgery. Neurological review shows no chance for recovery. I signed a consent form prior to surgery with "nerve damage" listed as a possible risk amoung many others. No one discussed the potential result with me. I filed claim with COPIC-the malpractice carrier. It was denied based on argument that result is known risk and that I signed a consent form.

How do I find out whether this specific act is malpractice? I am an accountant so my argument regarding financial damages might be easy to counter so I may be limited to pain and suffering--250K lid in CO. Thus I am hesitant to hire an attorney, incur costs and maybe lose anyway. So I need help assessing my chance of winning before I hire an attorney.

Any advise would be appreciated

 

[vrzirn]

Unfortunate result. It is, indeed, a "known risk" and you did consent. Notes in your medical file will indicate "risks explained and accepted".Any suit you file would be waste of time and money. You would lose. No malpractice unless you can absolutely prove negligence and that surgeon's skill was below the "standard of care". I am sure you had "board certified" surgeon. So, as I said, unfortunate result.

 

[vrzirn]

You are entitled to copy of your medical records and the op report. Maybe there is something in there that says a new resident was permitted to do some part of the procedure beyond his level of skill. Look carefully at the anesthesiologist's record as well. He may have annotated something untoward. Look at the operating room nurse's notes.Pay a medical expert just for his independant review if you find something that doesn't look quite right. I know, that despite being "known risk", foot drop is devastating for the patient.

 

[ellencee]

dagwood
I am an RN, retired, and I have numerous years of experience with orthopedic surgery patients, and hip-replacement surgery patients.
Never in my entire experience have I encountered a patient who suffered foot drop as the result of the surgical procedure alone.
I am not saying it is not a feasible risk, but I don't find that particular risk listed in the known risks of the surgery, and I certainly would not consider it a common risk.
As for the consent that you signed, which stated a known risk of 'nerve damage', I assure you I have seen this statement torn apart by lawyers. for example, the nerve damage you might expect from hip replacement surgery is usually equal to not being able to feel a touch on a certain part of your leg, usually around the surgical area. Foot drop is a risk of such significance that it should have been listed separately and specifially, not inclusively under "nerve damage" and the effects of foot drop should have been fully explained to you prior to surgery.
I have no knowledge as to why you had this surgery and can not make a statement as to whether the benefits out-weighed any risk.
A medical expert will be needed if cause for action is found, but less costly and just as effective, is the use of a nurse consultant for initial review and ongoing consultation. Many are listed on the web.
Please search the net for info regarding your surgery, also. You may find more answers to your questions on the web.
As far as compensation goes, I will have to say that although your condition is permanent and irreversible, it is not completely and absolutely going to interfere with your ability to work, but it will have some effect on your work, as you will have other problems with this leg and foot as time goes on. Did you lose the ability to participate in activities that are your usual routines, ie: playing golf, skiing, bowling, bicycling? I believe you can be compensated for the losses associated with losing your normal activities, but I am not a lawyer, nor am I from your state.
If I were you, I would pursue this a little further before giving up.

 

[vrzirn]

Stateof the Art Orthopaedic conference-Whistler, B.C. Canada. Feb. 12-17 2000. An excellent presentation by C.S. Renahat MD and V. Rasquinha MD regarding sequelae following THA. They discuss nerve palsy and it's incidence. Although severity varies it is not uncommon.

 

[ellencee]

this is not common as infection or the other risks associated with hip replacement surgery, or is it of equal severity in damage. I don't believe it's lumped in with the usual risks in probablity or occurance. this poster says the risk was not explained, and I agree, it likely was not. the risk of complete loss of the use of the foot due to foot-drop is not a risk one would forget hearing about, and would probably ask how often that happened, kind of like the risk of death. I'm telling you, I never had a patient that suffered that injury during hip replacement surgery, and I never heard of one occuring at the hospitals where I worked. If it is indeed so common, were our surgeons simply uncommonly competent?

 

[Dagwood]

Thanks to both of you for taking the time to respond. elencee, you have provided with me with much reason to pursue this thing further and I will begin the process of talking to lawyers soon.

I am previously spent hours on the internet unsuccessfully attempting to find any discussion of this issue. Do you have any suggestions of how I might find something?

vrziren, I appreciate your view point but it only seems logical to me that a doc should have to explain risks to the patient if he is later going to use the "known risk" defense. As elencee points out, "nerve damage" can mean all kinds of things to a medical professional, and expecting a layman to interpret "foot drop" into those words is a big stretch.

You refer to the Renehat presentation. Is this the text of this presentation available on the net? If there is substantial evidence to back up your opinion, I would be stupid to not agree with you.

While my real hip was painful and my activity was limited, the result of the surgery has left me in a worse position that I was in before the surgery.

 

[ellencee]

dagwood:
just as a footnote: you need to check on the statute of limitations in your state as applies to medical malpractice, and not let the time get past you because when it's over, its over. I'm thinking it's probably 2 years from the date of occurence, but check it, I'm not a lawyer.
and out of pure nosey curiosity, why did you need hip replacement surgery? (the reason might have a bearing on your situation, but I asked out of nosey-ness before I remembered that it might have had an impact on the outcome of the surgery. my face is red over that one. )

 

[vrzirn]

It should be somewhere on the net. Try looking in Medscape. I told you conference date and name. Damage to superior gluteal and sciatic nerves are "known risk". And, as I said, severity varies. I guess you had an EMG. Have you spoken to a physiatrist or orthopedic rehab specialist to help optimize your functioning of the foot? An AF orthosis (ankle-foot) may help.

 

[Dagwood]

The reason I needed the surgery was that I had heavy duty arthritis and the Xrays showed bone on bone.

You are right, the statute of limitations in Colorado is 2 yrs. I waited this long because my OS told me he was sure that use of foot would return. While I did not believe him, I wanted the insurance company to not have that as a reason to deny my claim.

Yes I have had several EMGs by a very good neurologist. All showing no nerve activity. He explained that if nerve was severely damaged it would die in a few days and be absorbed by body. Then it could re-grow but most people grow nerves at about an inch a month. And since the muscles that need the nerve are a good 2 feet away from where the surgeon did his deed, it is highly likely that the muscles will have died before the nerve gets there. Obviously I have interpreted what he said into laymanese.

I do have a custom-fitted AF.

vrizen, you have stated several times that foot drop is a known risk. But you have not shared the source of your knowledge. Is it only the article you referred to? And I am interested in a direct response to Elencee's observation over many years that NO ONE
had experienced this result. Also, what do you think of her observation that "nerve damage" is generally a much less severe problem than foot drop?

 

[vrzirn]

"Foot drop" is a consequence of nerve damage. Nerve damage is the cause and foot drop is the effect. I am MD with 30 years experience in the OR and as expert witness in medical malpractice.I truly wish you luck and do understand how difficult this is for you.

 

[Dagwood]

I found the article! It can be found at:
www.medscape.com/medscape/OrthoSportsMed/CourseReport/2000/Whistler/Whistler-03.html

In my reading of this article, there is no mention of foot drop but there is a comment the rate of sciatic nerve dysfunction is 0.6% when the anterolateral approach is used. I would not say this is overwhelming evidence that foot drop is a "known result".

 

[ellencee]

dagwood
and now you have the future looking you in the face! on one hand, you have a physician (vrzirn) defending his profession, which is what one should expect, and you have an RN giving you another opinion, which is what one should expect if a difference exists. and please don't think that this back and forth between md and rn is a bad thing; in my experience it was a great learning tool, friendship and trust builder, among the professions (excluding the usual pains on both sides).
the surgeon who performed your surgery will be evaluated and held accountable for providing your surgery on an equal basis to other surgeons of the same qualifications in the same type setting. in other words, if you live in little-town Colorado and have a regular surgeon, the surgeon will be expected to provide the same as a regular surgeon in little-town in X state, not as the same as mr. big surgeon in big-town hospital USA.
I would want to know the incidence of occurence of your injury in your surgeon's practice over the past 5 years, and that of the entire surgical staff at your hospital.
you need to get the records of your md visits prior to the surgery, where surgery was discussed and planned, also get the operative notes inclusive of all records from consent signing through the first 24 hours post-op. That will give you a managable and affordable amount of records to be reviewed, and hopefully will contain information as to the risks that were explained.
Good luck. and vrzirn, I turn the keyboard back over to you, sir (or ma'am). Christmas calls!

 

[Dagwood]

I definitely do not consider the back and forth as negative in any way. I am looking for facts, not support.

Thanks