April 1999 Bulletin

Good documentation avoids legal woes

Cases show orthopaedists vulnerable to claims about delayed diagnosis

I recently defended three orthopaedic surgeons in a cluster of cases with virtually identical allegations: patients in their 60s with primary complaints of low back pain. Each was worked up for degenerative arthritis of the lumbar spine, and after several years was diagnosed with advanced degenerative hip disease. Each had a successful total hip arthroplasty. Each patient also filed suit, alleging delayed diagnosis of the hip disease.

These cases underscore the importance of good documentation; that the treating orthopaedists had charted specific symptoms during each office visit would have been very helpful to their defense. It is also a good reminder that back pain has many different etiologies.

A 62 year-old businessman had complained of transient back pain, receiving physical therapy with some relief. CT and MRI scans showed a herniation at L5. His orthopaedist ordered PT (physical therapy) and NSAIDs, which enabled him to play tennis and other sports, but when his back flared up again two years later, he was referred to a neurosurgeon. The neurosurgeon did not consider the possibility of degenerative hip disease because of the clear radiological evidence of herniation. He performed an L4-5 diskectomy, which did not alleviate the back pain.

Several months later the patient saw another orthopaedist, who took X-rays and noted degenerative changes in the hips. He did a right total hip arthroplasty; the patient said he was completely cured by the hip replacement, and sued the first orthopaedist for not diagnosing his "true problem" earlier.

A 69 year-old retired schoolteacher complained of bilateral hip and back pain and left thigh parasthesia. X-rays showed degenerative changes in both the lumbar spine and the hips. During the next several years she complained of back pain and radiculopathy, both of which waxed and waned. A CT scan then showed an L3 disk bulge. She received epidural steroids, and was conservatively treated for the back pain. Several years later, plain films showed marked degenerative changes in the hips, and she had a right total hip replacement, with an excellent result. She sued her orthopaedist for not performing the hip arthroplasty sooner.

A 65 year-old personal injury attorney complained of groin pain and low back pain, which was exacerbated after weekly tennis matches. X-rays showed osteoarthritis of the lumbar spine and in both hips, and a CT scan showed diffused disk bulges at various levels of the lumbar spine. For several years, he was treated conservatively, and his symptoms waxed and waned. He complained of right hip pain in his groin once, but later reported he was exercising daily and feeling better.

Then, he had a car accident and reported substantial back pain immediately afterwards. He filed a claim against the other driver, contending that his current back pain resulted from the accident, and that his prior back symptoms had resolved.

An orthopaedist retained by the insurer of the other driver examined him and X-rayed him, and opined that his back problems were related to degenerative hip disease, rather than the car accident. He saw a third orthopaedist, who performed bilateral hip replacements five and seven months after the accident due to advanced degenerative arthritis. After settling his accident claim, he then sued his first orthopaedist, contending that his problems were hip-related, rather than back-related. He retained, as his own expert, the orthopaedist who had been adverse to him in the auto case.

Each of the three malpractice cases was voluntarily dismissed. It is unknown whether the patients were able to procure a physician who would testify that the treating orthopaedists breached the standard of care. Experts retained on behalf of the orthopaedists would have testified that there was no breach of the standard of care, and that in any event, same or similar conservative treatment would have been warranted for treatment of arthritis of the back or the hip. A lumbar laminectomy would not necessarily have been successful (as in the first case), and hip replacements are delayed so long as the patient can tolerate it to decrease the odds that the arthroplasty would need to be repeated in 15 or 20 years.

By David A. Levy, an attorney in San Mateo, Calif.

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