According to the American College of Rheumatology, orthopedic surgeons perform about 790,000 total knee replacements and 544,000 total hip replacements each year in the United States.
These numbers are expected to rise as the population continues to age.
Total joint arthroplasty or TJA is reserved for patients with degenerative joint disease for whom conservative treatments do not work.
A recent study in The Journal of Arthroplasty finds that while TJA is the most common procedure associated with medical malpractice claims within orthopedic surgery, the reasons for the litigation are changing.
The article, “Medical Malpractice Litigation Trends Following Primary Total Hip and Knee Joint Arthroplasty: An Updated Nationwide Analysis,” was published in September 2024.
Researchers examined primary hip and knee TJA cases in the U.S. between 2018 and 2022. In all, they looked at 59 claims — 33 total knee replacements and 26 total hip surgeries.
Among their key findings, the primary cause of knee litigation shifted from infection to ongoing/worsening pain over time.
While nerve injury knee replacement cases have decreased, it remains the most cited allegation in hip replacement lawsuits.
Robert Gibson, partner at Heidell, Pittoni, Murphy & Bach, said the findings are similar to what he’s seeing in his practice.
Gibson, who represents some of the nation’s largest health care systems in high-exposure malpractices cases at the New York-based firm, said about half of his practice involves orthopedic surgery claims.
Gibson said with knee replacement cases, the most common complaint is post-operative stiffness.
“We do not see many nerve injuries related to knee replacements,” he said. “Nerve damage is more commonly associated with hip replacements, which can result in a condition known as drop foot where the patient has difficulty lifting the front part of the foot. Improper placement of the components or the use of wrong-sized components are common allegations, but those claims are rarely valid because this type of surgery is highly specialized and most surgeons performing them possess a great deal of expertise.”
Regardless of the primary allegation, the majority of the cases are defensible, Gibson said.
“It often comes down to the patient not following the post-operative regimen,” he said. “Many of the claims related to post-operative stiffness are due to the patient not adhering to the physical therapy protocols recommended by the physician. Some patients do not stay in therapy long enough or don’t go at all.”
There can be other factors as well, he added, including some patients who are more prone to develop scar tissue which causes stiffness.
“In some cases, this can be alleviated by putting the patient under anesthesia and manually manipulating the joint,” Gibson said. “There are inherent risks with any joint replacement surgery that cannot be avoided, even if a surgeon does everything correctly. This is often a strong argument in the defense’s favor.”
The Plaintiff’s Perspective
Christian Jagusch, medical negligence counsel at Walkup, Melodia, Kelly & Schoenberger, said total joint replacement malpractice cases can be difficult to prove, partially because of the risk factors.
Jagusch, who joined the San Francisco personal injury firm in 2016, said he generally only takes on cases in which there was a breach in the standard of care with supportable causation and sufficient evidence to prove it.
“For example, if a client comes to me and says I developed an infection after surgery, I’m not excited to take the case because post-surgical infections are common risk factors,” he said. “However, if that same client comes to me and says the infection went undiagnosed and now it spread, then this person could have a strong case.”
In fact, Jagusch recently represented a total hip replacement patient in a malpractice case in which the post-surgical infection was misdiagnosed and treated inappropriately, leading it to spread to other joints. The end result was that the patient developed chronic post-septic arthritis in multiple joints leading to lifelong disability.
The lawsuit was settled.
“Cases involving failure to diagnose, leading to a worse outcome are the easiest cases to prove,” Jagusch said.
Post-operative pain and nerve injury claims generally do not make good cases unless it can be proven that the surgeon did not follow standard protocols, Jagusch said.
“The critical question is whether it was foreseeable that such an injury occurs without negligence,” he said. “If the injury is foreseeable, these do not make for viable malpractice cases. Pain by itself is a common risk of these surgeries and nerve damage injuries can also be tricky because there are also documented risk factors.”
However, when nerve damage occurs because the surgeon was operating outside the standard surgical field, then the plaintiff likely has a strong case, he added.
“This is particularly true when the patient has a permanent disability related to the nerve injury,” Jagusch said.
Other cases that may be viable malpractice cases involve significant leg length discrepancies.
“Again, the question is whether this amount of leg shortening was reasonable or outside what could be considered a risk of surgery,” he said.
The post-operative management of total joint arthroplasties can also give rise to medical malpractice actions, Jagusch said.
“For example, there are clear orthopedic society guidelines for anticoagulation following these procedures. If the orthopedist fails to provide appropriate anticoagulation and the patient develops blood clots, this may give rise to a viable claim.
“Overall, total joint arthroplasties are difficult cases because of the known risks of these procedures,” said Jagusch. “Therefore, each case must be individually evaluated by a competent medical malpractice attorney to assess the merits of the case.”
Mitigating the Risks
The Journal of Arthroplasty study cited procedural error (47%), post-surgical error (27%) and failure to inform (14%) as the top negligence claims.
While it’s impossible to avoid litigation in every instance, Judy Klein, senior risk solutions consultant at MedPro Group, said there are strategies that surgeons and health care entities can employ to help decrease the likelihood of a claim being filed.
Klein said clear and complete documentation throughout all aspects of a patient’s care, including pre-, intra- and post-operative, can go a long way toward avoiding or defending claims.
During the pre-surgical phase, she said surgeons should review a patient’s medical history, screen for infections, including dental, and consider any co-morbidities, lifestyle or risk factors such as smoking, uncontrolled diabetes or body weight that could lead to a poor outcome.
Clear communication between the surgeon, patient and the individual’s family is also essential to ensure “effective informed consent,” she said.
“The physician should encourage an open dialog that sets forth realistic expectations for the outcome of the surgery and affords the patient and family an opportunity to ask questions,” Klein said. “Use plain language and confirm the patient’s understanding by having them explain back key details.”
Thoroughly explain and document the risks, benefits and alternatives of the procedure to the patient, taking into account any cultural differences, language barriers or disabilities that might impair the person’s comprehension, Klein said.
“This informed consent conversation must be documented in detail in the patient’s health record,” she said.
Klein said surgeons should have a variety of educational materials on hand that patients and their families can take home and review at the pre-surgical stage.
“These should include pre-operative instructions regarding medications, fasting and preparation protocols as well as post-operative instructions,” Klein said. “It’s important to have printed as well as visual aids, including brochures, anatomical models and video demonstrations available because individuals all learn differently.”
Surgeons should adhere to all evidence-based guidelines and standardized surgical protocols, she added, which include using proper implant selection and verify accurate alignment to prevent early implant failure or complications.
“Prevent errors by performing a standardized ‘time-out’ before each procedure and use a surgical safety checklist to confirm the correct patient, procedure, site and side, i.e., laterality or left versus right side,” she said.
Klein said health care professionals should be encouraged to report any problems or errors that occur during the procedure.
It’s also important that members of the health care team be accessible to address post-operative concerns, with each step of the post-operative carefully documented.
“Should something go wrong, this documentation will be key in defending the care,” Klein said. “In the end, it comes down to open communication and full transparency. If the health care team can demonstrate a clear narrative throughout all stages of care, this can go a long way to reducing the chances that a lawsuit is filed.”
