October 1996 Bulletin

Minute of Malpractice

by Malcolm A. Meyn, MD, JD

Malcolm A. Meyn, MD, JD, is a member of the Academy's Committee on Professional Liability

Fractures of the femoral shaft continue to be one of the more commonly-treated injuries by orthopaedic surgeons. During the last three decades, reduction of these fractures, either open or under radiographic control, followed by some method of stabilization has supplanted closed treatment of these injuries, particularly in adults. While this method of treatment has, in general, been beneficial to the patient, and satisfying to the surgeon, it has brought with it technical problems and complications that did not exist before instrumentation became popular.

Along with the advancements in treating fractures of the femur, there has been an increase in tort litigation. As treatment techniques improved, patient expectations of the results also increased. This increase in litigation was often fueled by surgeons who in their haste to use the latest instrumentation, promised patients outcomes that were only possible under the most ideal situations.

Members of the Academy's Committee on Professional Liability performed an on-site retrospective review of the records of an insurance carrier1 that writes only policies protecting against medical liability. Only the claims that were closed2 were evaluated. Forty-seven cases were found and reviewed by members of the committee. While not providing any statistical data, we were able to identify trends in the type of problems that lend themselves to litigation.

Surgeons continue to operate on the wrong side of the body. Two cases were found in our study. This is a totally avoidable complication. Surgeons, in consultation with their operating room personnel, should develop a consistent system of marking that is readily identifiable.

In five cases, suits were filed because of delays in identifying that a fracture was present. These occurred in patients with multiple injuries usually to the chest or abdomen. It is therefore important to evaluate the whole patient on admission and not just what is most apparent. It doesn't take long to assess the integrity of the long bones and the spine. It is embarrassing and poor medicine to be late in identifying and treating injuries of this magnitude.

There were four claims for what I call technical failures. These were cases in which the implant failed before bony union. All of these cases involved inadequate fixation. This was due to inexperience on the part of the surgeon in using the device selected, or to the lack of appropriate parts of the instrumentation that were needed for fixation, but not foreseen.

A surgeon using devices to reduce and hold fractures has to be familiar with the device and be confident in his or her ability to use it. All parts of the set that could be remotely needed should be available at the time of surgery.

Patients have a low tolerance to short limbs and angular or rotational deformities. While in some cases this is unavoidable, in all cases the patient should be warned of this possible complication. Shortened or angled extremities are often the result of poor implant selection, which again can be avoided by proper preoperative planning.

Infection after an operation is still an accepted complication usually held to be out of the control of the surgeon. Only one case was filed for this problem and that case was dismissed. In spite of this, surgeons should strive to avoid this debilitating complication and if it should occur, the infection should be identified and treated aggressively.

By far, it was the treatment of children's fractures that generated the most expensive cases. Children are not just little adults and their femur fractures should be treated according to their age. Following are summaries of some cases.

Case 1. A three-year-old male with a fractured femur treated by a surgeon in a rural area with Bryant's Skin traction followed by a spica cast. The treatment resulted in a fixed equinus deformity, fixed varus of the fracture, atrophy of the calf muscles with loss of foot function and loss of sensation of the calf and foot. Settlement of $300,000.

Case 2. A 12-year-old female with shaft fracture of the femur treated with closed reduction and spica cast. Treatment resulted in pressure sores, sciatic nerve palsy, equinus deformity of the ankle, motor and sensory loss to the calf and foot. Settled for $375,000 against defendant surgeon and an additional $280,000 against partner physician.

Case 3. A 13-year-old male with femoral shaft fracture treated by a rural orthopaedic surgeon with percutaneous pins inserted above and below the fracture, closed reduction, and application of long-leg cast incorporating the pins. Treatment resulted in angulation of the fracture with 4.1 cm. of leg-length shortening. Settled for $75,000.

Case 4. A 5-year-old male with shaft fracture treated with closed reduction and application of spica cast. Treatment resulted in nerve injury (peroneal), with foot drop and pressure sore. Settled for $170,000.

Case 5. A 12-year-old male with femoral shaft fracture treated in traction and casting. Healed with 3.5 cm shortening and angular deformity. Defense verdict at trial, but $25,000 in defense costs.

Some of these cases involve non-standard treatment of children's fractures with major complications. There also was negligence in allowing complications secondary to casting to occur. Is this due to the fact that with all of the technology available orthopaedists are forgetting the principles of closed treatment of fractures?


Treatment of fractures of the femoral shaft requires thorough emergency room assessment and thoughtful preoperative planning. Patients and their families should be given honest, accurate preoperative counseling without overly optimistic expectations. Surgeons should be knowledgeable and familiar with the devices they use and should have all parts ready and available at the time of operation.

Surgeons should not forget the principles of closed fracture treatment particularly in the treatment of children's fractures.


  1. The carrier is not named to protect the possible identification of the surgeons involved in the cases presented in this article.
  2. Claims that were either withdrawn by the plaintiff, dismissed, settled, or had gone to trial.

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