Court finds surgeon’s decision did not compromise duty of care

Paul Tsaousidis, BA LLB, Head of Practice Legal NSW, Avant

Thursday, 7 March 2024

Doctor showing x-ray of ankle

This case was originally published in Oct 2022 and republished in March 2024. 

An orthopaedic surgeon successfully defended allegations of negligence regarding his decision not to remove ankle fixation hardware; after an infection developed years later, and the patient suggested the fixation caused the infection.

The case emphasises the importance for doctors to clearly record their decision-making process and to communicate openly with their patients about their decisions.

Multiple operations and an infection

The patient sustained a fractured fibula after a motorcycle accident. The surgeon member performed an open reduction and internal fixation by inserting a plate and screws in the patient’s ankle. This involved a syndesmosis tightrope stabilising system to hold the ankle joint together.

About a month later, the patient developed a post-operative infection, was treated with antibiotics and underwent further surgery. Two months later, during a third operation, the surgeon removed the hardware on the lateral side of the patient’s ankle. He decided not to remove the hardware on the medial side because the area did not appear to be infected, and to avoid causing a cross-infection by opening the skin on the medial side.

About three months later, the patient stopped taking antibiotics on the advice of his infectious diseases physician who believed the infection had been treated. The doctor misinterpreted the surgeon’s operation report and concluded all the ankle hardware had been removed.

The patient did not present to the orthopaedic surgeon for further review.

About seven years later, the patient developed osteomyelitis in his right ankle, which led to a fourth operation where the surgeon removed the remaining hardware.

Case turns on surgeon’s decision

The patient accused the surgeon of negligence during the third operation, when he decided not to remove the hardware. The patient argued the hardware was redundant and caused the osteomyelitis.

In the original trial, the surgeon’s decision to leave the hardware in place was not criticised. However, the trial judge did criticise not adequately spelling out this decision in the operation notes or in communication with other treating doctors and the patient.

The original case was dismissed on the basis that, although the surgeon had been criticised for failing to adequately communicate the decision to leave the hardware in, the breach of duty had not caused the infection.

The patient appealed the decision, challenging the trial judge’s findings on whether the breach of duty caused the infection.

The surgeon filed a notice of contention, challenging the finding on breach of duty and claiming he had exercised reasonable care and skill.

The court of appeal noted the case turned on the surgeon’s deliberate decision not to carry out a procedure; this decision was clearly expressed and appeared plausible. The trial judge had accepted the surgeon’s reasoning process for not removing the hardware; therefore, the patient’s case centred on acceptance of expert evidence that the surgeon’s decision would not have been made by a reasonably competent and careful surgeon. The court preferred the evidence from the surgeon’s expert who specialised in ankle and foot surgery and was currently practicing, over the patient’s expert who had retired.

The court of appeal also disagreed with the trial judge’s criticisms of the operation notes and the surgeon’s communication with other treating doctors and the patient. The evidence clearly demonstrated a management plan had been put in place following the operation, involving the infectious diseases team and that three months after the operation, the patient’s infection had been cured. The court also found the failure to inform the patient about the remaining hardware had no practical consequence.

Surgeon did not breach duty of care

The infectious diseases experts for both parties gave evidence that the organisms grown from the ankle swabs at the fourth operation were most likely introduced during the first operation, due to a breakdown of aseptic techniques. However, this was not necessarily the fault of the surgeon. The organisms could have remained dormant until they became infective as osteomyelitis, years after the initial procedures.

On appeal, the court accepted the expert evidence that a blood-borne infection would not have settled in the ankle if foreign materials had not been present. Therefore, if it was found the surgeon had breached his duty of care by leaving the hardware in the ankle, the patient would have been able to establish that his breach of duty caused the infection. This is because the risk of later infection would probably not have materialised had the hardware been removed.

Ultimately, the appeal was dismissed as a breach of duty of care could not be established and no fault was found with the surgeon’s deliberate choice not to remove the hardware, nor with his clinical management.

Key lessons

  • Clearly record your decision-making process in the patient’s medical records.
  • Record an unambiguous operation note and a note in communication with other treating doctors.
  • Inform the patient of any procedures that have been performed and any potential subsequent treatment or impact on them.
  • Establish a future management plan.

Useful resources

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