Introduction
This case involved allegations that a total knee replacement (TKR) operation on 22 May 2019 was performed negligently and that following this procedure the trust failed adequately to diagnose, treat or act upon the claimant’s presentation.
Details
An orthopaedic expert instructed on behalf of the claimant maintained that x-rays taken after the operation demonstrated significant and excessive anterior notching of the anterior cortex of the distal femur. He also considered that there was excessive flexion of the femoral prosthesis and insufficient external rotation.
In oral evidence before the court, he conceded that he had never conducted an operation involving the specific prosthesis in question (Triathlon), although he had participated in such operations. He opined that any one of the alleged errors he has identified could be “bad luck”, but taken in combination they amounted to surgery below the standard to be expected – of this he was “100%” sure.
The operating surgeon, Mr. Patel, explained to the court how he had placed a jig on the claimant’s leg to guide his cutting and checked that everything was correct at all stages of the procedure. A notch, as alleged against him, would amount to a 50% reduction in the top bone whereas what he did was to chamfer this bone, which entailed a reduction in the top millimetre or so. He then undertook a trial assessment to ensure there was sufficient tension and that the kneecap was sitting appropriately. He was adamant there was no sign of notching, as alleged.
He considered the patient’s poor outcome to be a consequence of failure of the medial retinacular tissues in the knee, which produced significant patellar tilt, rather than because the surgery had been conducted negligently.
The trust’s expert orthopaedic witness, Mr. Marston, had undertaken around 1,250 knee replacement operations and 120 revisions. He did not consider the proximal tibial cut to be poorly fashioned, as claimed, but rather that it was ideal for the Triathlon knee. He said there was no evidence of notching on the x-ray and agreed Mr. Patel’s categorisation of a “chamfer”.
Judicial Assessment
Judge Baucher noted that neither the claimant’s significant co-morbidities (her medical records constituted some 14,000 pages) nor her failure to engage with treatment post-operation had been addressed by the claimant’s expert. His evidence “did not provide the degree of balance” that the judge would have expected. On the other hand, she described Mr. Patel as “clearly an eminent surgeon” who had undertaken over 800 TKR procedures and was an impressive witness. His evidence was reinforced by his contemporary note of the operation. That evidence was compelling and would be accepted without hesitation.
Mr. Marston’s opinion was consistent with the evidence of Mr. Patel. He was satisfied that there was no notching. There was no evidence of flexion outside the permitted guidance for fitting a Triathlon knee.
Accordingly, Judge Baucher found that Mr. Patel’s surgery did not fall below the requisite standard (the Bolam test) and that he had acted in accordance with a responsible body of orthopaedic surgeons.
Turning to the post-operation history, Judge Baucher noted that the claimant “had a whole myriad of other medical issues”, and in particular fibromyalgia. It was therefore entirely reasonable for the trust to delay consideration of any further surgery until twelve months after the initial operation. By then, the COVID-19 pandemic had arrived and surgery was not urgent. Consequently, the fact that revision surgery was delayed until 7 October 2020 was not unreasonable.
Insistence by the claimant’s expert that a 3D scan should have been conducted in 2020 was “divorced from the reality of life in NHS practice and indicative of the fact that he has not been engaged with such work for 23 years, apart from some NHS outsourcing”. In any event, such a scan was not available at this trust.
Judgment was therefore given in favour of University College London Hospitals NHS FT.
Comment
One of the keys to a successful outcome in clinical negligence claims is to use the services of a suitable expert witness. Arguably the claimant’s lawyers made the wrong selection because their choice, although an orthopaedic surgeon of long standing who had conducted no fewer than 3,500 knee replacement operations (far more than the trust’s expert), had not been employed by the NHS since 2001 and had never personally performed a procedure using the Triathlon prosthesis. He also failed to address certain aspects of the case, including the claimant’s numerous co-morbidities.
It is interesting to note the judge’s comments concerning the COVID-19 pandemic. She made it clear that the law would take into account circumstances pertaining on the ground in the NHS when determining whether a particular course – in this case delaying a revision operation – was reasonable in all the circumstances. The law of negligence hinges to a great degree upon the concept of reasonable care; and what might be reasonable in normal times might not be such when there is a national emergency.
