Orthopaedics and clinical negligence claims

Orthopaedics and clinical negligence claims

What is orthopaedic medicine?

Orthopaedics medicine focuses on the care of the musculoskeletal system. This system consists of muscles, bones, joints, ligaments, and tendons.

There are two types of orthopaedists: surgical and nonsurgical. Orthopaedic surgeons perform surgical procedures, while nonsurgical orthopaedists include therapists, physiotherapists, nurse practitioners and rehabilitation specialists.

What medical conditions do orthopaedists treat?

In broad terms:

  • joint pain
  • bone fractures
  • soft tissue injuries
  • back and neck pain
  • hand, arm and shoulder pain and stiffness
  • foot and ankle bone and tendon problems
  • emergency trauma eg after a road traffic or work accident
  • carpel tunnel syndrome
  • overuse and sports injuries, including sprains, tendonitis, meniscus tears, and anterior cruciate ligament tears
  • congenital conditions, such as scoliosis
  • sometimes types of bone cancer

What is clinical negligence?

Clinical negligence occurs when a healthcare professional gives a patient substandard care and as a result, the patient sustains injuries they would otherwise not have sustained. Healthcare professionals have a duty of care to all their patients to ensure they are treated properly and appropriately. Where substandard care has been given it is normally either a failure to treat the patient properly for their medical condition or a failure to get proper and informed consent from a patient for their medical treatment.

Why is clinical negligence different from other types of negligence?

Clinical negligence involves healthcare professionals such as doctors, surgeons, nurses, dentists and other medically qualified personnel. Victims of clinical negligence by definition are often already ill at the time inadequate care is given, compounding an already complicated situation. Victims may be left not only with their original medical complaint but further injury caused by incompetent care.

Cases are often complex and the solicitors handling the action must have a knowledge of both law and medicine and the interaction between the two. This requires a significant level of expertise and skill from the solicitor.

How common are mistakes in orthopaedic care in the NHS?

In the 2021-2022 NHS Resolution report, orthopaedic surgery accounted for 12% of all claims of clinical negligence and 3% of all claims paid out. Between 2018 – 2022 there were 3991 cases of clinical negligence involving orthopaedic surgery.

What types of clinical negligence claims arise in orthopaedic surgery?

  • Diagnostics errors such as delay in diagnosis of fractures or misdiagnosis. For example, misdiagnosis of a fracture as a sprain or delaying the diagnosis of a bone infection can lead to a delay in treatment and worsened outcomes.
  • Surgical Errors: Errors during surgery can occur due to a lack of proper planning or execution, leading to injury or harm to the patient. For example, wrong site surgery, implanting the wrong size or type of prosthesis, or failing to properly align bones during joint replacement surgery can result in significant harm to the patient.
  • Infection: Infections can occur during or after surgery, leading to serious complications and even death. For example, surgical site infections or infections caused by contaminated medical devices or implants can result in severe harm to the patient.
  • Nerve Damage: Damage to nerves can occur during surgery or as a result of improper positioning or handling of the patient during surgery. For example, nerve damage during hip replacement surgery can result in numbness, weakness, or even paralysis of the affected limb.
  • Post-Operative Care: Inadequate or negligent post-operative care can lead to complications and harm to the patient. For example, failing to properly monitor a patient's condition after surgery or not providing appropriate pain management can result in serious harm to the patient.
  • Neonatal problems – failure to diagnose bone and joint infection and congenital dislocations of the hip and developmental hip dysplasia.
  • Failure to take and/or properly read and interpret x rays.
  • Lack of proper and informed consent to surgery and/or treatment. Patients must be fully informed of the risks and benefits of their treatment before undergoing surgery. Failure to obtain informed consent can result in a claim of clinical negligence.
  • Post-operative infection. Surgical site infections can be a problem. Failure to prevent or properly treat these infections can result in serious complications.
  • Medication errors. Medication not appropriately prescribed for the patient or failure to monitor the patient’s response to medication. These errors can result in serious complications, such as allergic reactions or overdoses.
  • Implant related complications such as hip and knee replacements. These can sometimes fail or cause complications due to design of the implant, surgical technique or a patient’s anatomy.
  • Non union of fractures.

What are the consequences of clinical negligence in orthopaedic surgery?

This will depend on the nature of the surgery and the original orthopaedic complaint. Some patients may recover relatively quickly where the original complaint was not serious and the negligent act remedied quickly. In other cases there may be life long difficulties with pain, suffering and disability. In the most serious cases, patients’ ability to work have been severely curtailed and they have been unable to care for themselves with devastating consequences for them and their families' physical, mental and economic well being.

What should I do if I think I have a claim for clinical negligence in orthopaedic surgery?

You should see your solicitor. They will take instructions from you about the circumstances of your treatment. They will then obtain all your relevant medical notes and records to ascertain precisely what treatment you were given. After going through the records and ensuring their accuracy, they will instruct an expert physician with the relevant expertise in orthopaedic medicine to determine if the treatment given to you was negligent. If the expert finds that the treatment given was below the standard you were entitled to expect they will advise you accordingly and you can begin an action for compensation against the healthcare professional who was responsible for your medical care.

How long do I have to make a claim?

Normally in personal injury law (but see below for clinical negligence matters), you have:

  • three years from the date of your injury to make a claim
  • If you are making a claim on behalf of a child, it can be made any time before the child reaches the age of 18. Once a child reaches the age of 18 and if they have the requisite mental capacity, they have a further three years to make a claim themselves until they reach the age of 21
  • If the injured party does not have the requisite mental capacity then there are no time limits on when a claim can be made

In clinical negligence cases, the time limit (what lawyers call the “limitation period”) of three years will normally start either from the date of the act of negligence or from the date the patient knew or ought to have known that the injury or harm was due to an act of negligence. The date of knowledge can be years after the negligent act, for instance, if an operation was performed negligently on a shoulder joint replacement and a patient was unaware of this, it may be years before the patient’s symptoms progress such as to necessitate medical attention. In such circumstances the patient could not have known that the original operation was performed negligently until the symptoms appeared and the time limit will therefore only run from the date of knowledge of such negligence – not when the operation was originally performed, which could be many years after the date of the original negligent act.

Time limits in clinical negligence matters can be complicated and you should seek legal advice immediately if you think you have a claim. Do not delay.

How is my compensation assessed?

We divide compensation into a number of headings:

  • Compensation for pain, suffering and the effect the injury has had on a client’s life (what lawyers call “general damages”). The exact amount depends on the severity and extent of the injury and its impact. This will include physical and emotional loss, suffering and pain and compensation for loss of enjoyment of life
  • The injured party’s loss of earnings, past and into the future, including all job related benefits and pension loss (what lawyers call “special damages”). If your injuries have reduced your ability to work you will be entitled to the difference between what you would have earned but for the malpractice and what you can now earn
  • If someone has had to stop or reduce their work because it was necessary to look after the injured party then the claim will include their loss of earnings, past and into the future, including all job related benefits and pension loss
  • Cost of all medical expenses, past and future. This will include hospital bills and medication costs
  • Cost of all therapy and rehabilitative treatment (including occupational therapy), past and future
  • Cost of any nursing and domestic assistance, past and future
  • Cost of any adaptions to property or the cost of new housing
  • Cost of any adaptions to a vehicle or the cost of a new vehicle or travel or other costs

How long will my case take?

Clinical negligence cases are complex with a high level of legal expertise required. Expert reports from doctors are necessary and depending on the nature and severity of the injury, rehabilitative/care consultants and accountants may be instructed and such reports can take some time to prepare. Straightforward cases may be settled within a year. More complex cases will normally take 2-4 years to conclude.

Can I get an interim payment of compensation before my case is settled?

Yes. Interim payments can be made in personal injury cases where there is an immediate need for financial assistance. The value of any such payment is deducted from the final figure awarded in compensation. Such payments are used in cases that can take some years to settle. They help families meet immediate financial demands and can pay for medical and other expert therapies as quickly as possible.

Will my case to go to court?

The vast majority of cases that have a reasonable prospect of success are settled and do not go to hearing. This is the case even where court proceedings have been commenced.

How can the Kearney Law Group help?

We appreciate that no amount of money can go anywhere near putting you back to the position you would have been in prior to the substandard clinical care. What we can do is provide as much financial and other assistance as is possible to alleviate the burden of your loss. We will ensure that you get the help you need now and into the future. Compensation will ensure you receive the best possible medical treatment, rehabilitation and care, both in the short and long term.

We are passionate about our work. We are easy to talk to and will keep you fully informed about the progress of your case. We are tech enabled and use software platforms to ensure your case is dealt with expeditiously and professionally. We are very experienced and have a team ready to deal with all aspects of your claim for clinical negligence.

We only do personal injury law and are experts at it.

For further assistance please ring us at 02890 912 938 or email us on [email protected] or fill in our contact form

The content of this blog is provided for information purposes only and does not constitute legal or other advice. No solicitor/client relationship or duty of care or liability of any nature shall exist or arise between the Kearney Law Group and you and we refer you to our disclaimer on our website.

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