Expert evidence supports orthopaedic surgeon’s performance and follow-up of hip replacement surgery

Key messages from the case

Expert evidence helps courts determine whether a doctor's care met the expected standard of care. This case demonstrates how expert opinions may evolve and how contemporaneous medical records can support both the treating doctor's evidence and inform the opinions of expert witnesses.

Details of the decision

Mr T had a history of hip problems since childhood. In 2011, at age 43, he underwent a total hip replacement. Orthopaedic surgeon Dr W implanted a femoral stem into his left hip. Around six weeks later, it became clear the femoral stem had moved relative to the femur, resulting in an approximately 11mm shortening of the leg which Mr T found intolerable. Dr W performed revision surgery but, after assessing the implant during the procedure, concluded the stem was stable and left it in place.  

Dr W continued to regularly review Mr T over the following eight years. In 2019, Dr W identified loosening of the prosthesis and recommended further revision surgery. Mr T consulted another surgeon who replaced the prosthesis.

Mr T alleged Dr W had been negligent by failing to identify that the femoral stem was loose during the 2011 revision surgery and by failing to recognise or investigate loosening during the subsequent years of follow-up care, which delayed further revision surgery.

The trial judge dismissed the claim and Mr T appealed that decision.

Conflicting expert evidence

Courts rely on expert evidence to help explain events and interpret evidence, including whether the treatment provided met the expected standard of care. Experts are usually engaged by lawyers for the patient or practitioner and prepare reports based on the information provided to them. Those experts should have skills and experience relevant to the treatment in question in the case and be peers of the practitioner (for example in terms of specialty and experience). The experts may later confer with the other parties’ experts, usually referred to as a “conclave”, and prepare a joint report.

In this case, both parties engaged orthopaedic surgeons as expert witnesses. Mr T also relied on evidence from an expert radiologist.

The orthopaedic experts prepared separate initial reports based on the information provided by the parties instructing them. They later participated in an expert conclave and produced a joint report identifying where they agreed and disagreed.

One of the orthopaedic experts acknowledged that aspects of their opinion changed after reviewing additional material, including Dr W's clinical records, and after discussing the case with the other expert. The Court of Appeal noted that the purpose of a joint report is to document the “mature opinions” of the experts after considering each other's views. Where an expert changes their opinion following a conclave, the joint report generally supersedes the earlier opinion.

Standard of care

Mr T relied on expert radiological evidence that imaging demonstrated progressive loosening of the prosthesis, supporting his allegations of negligent management in the surgery and subsequent management.

The orthopaedic experts accepted the imaging showed what was described as “lucency” or less dense areas around the stem but that there were no significant changes regarding lucency or movement of the stem after 2011. The experts explained that imaging alone could not determine whether the prosthesis was clinically loose. They considered the imaging needed to be interpreted alongside the patient's history, physical examination and functional ability.

The court accepted the orthopaedic expert evidence and assessed it together with the contemporaneous clinical records and Dr W’s oral evidence. It found Mr T had not proved the stem was loose and had not established any deficiency in the performance of the surgery and subsequent management.  The court preferred the evidence of the orthopaedic experts because they reflected peer professional opinion regarding assessment and management of the patient.

Medical records

More than 13 years after the initial surgery, Dr W had limited recollection of the details of the consultations and relied on their patient notes.

The patient argued Dr W’s surgical notes were inadequate, for example they did not set out every step undertaken during the surgery.

However, the court found Dr W’s notes were careful and included the details necessary to provide an overall record of what had occurred. As a record of events, the records were to be preferred over the patient’s recollections whenever these differed.

The Court of Appeal also considered Dr W’s notes were methodical and details and were important evidence supporting Dr W’s oral evidence.

The records also provided an important factual foundation for the orthopaedic experts when assessing whether Dr W's management met the expected standard of care.

Outcome

Both the trial judge and the Court of Appeal concluded that Mr T had failed to establish that Dr W had breached the required standard of care. The court dismissed the appeal and upheld the judgment in favour of Dr W.

Key lessons

In cases alleging negligence, clinical decisions will be judged against the standard expected of a reasonably competent practitioner in the relevant specialty at the time the events occurred. The legal question is whether the care provided was consistent with widely accepted competent professional practice.

For all treatment you provide, keep detailed contemporaneous medical records. If your care is questioned (sometimes years later), those records will be important evidence. They can help refresh your recollection, explain your clinical reasoning and support both your own evidence and the opinions of expert witnesses.

If you’re asked to provide expert evidence, your role is to provide an independent opinion based on your expertise and the information provided, regardless of which party has instructed you. You can ask for additional details if you feel there is something missing from the information provided to you.

Your overriding duty as an expert is always to the court.

If your initial opinion changes after reviewing additional information or discussing the case with another expert during a conclave, there is no cause for concern. The court recognises that this process helps experts develop their mature opinions. A properly explained change of opinion does not undermine your credibility and should be reflected in the joint report.

References and further reading

Avant factsheet – Medical records: the essentials

Avant factsheet – Writing an expert witness medico-legal report

Avant guide – Giving evidence in court