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Erica Power successfully defends surgeon performing a unicompartment knee replacement

A surgeon had not been negligent in performing a unicompartment knee replacement on a patient whose long-standing knee problems derived no benefit from it, and where expert opinion was agreed that only a minority of orthopaedic surgeons would have performed it in such circumstances. Mode of treatment was always a clinical decision, and the fact that the patient had been intent upon surgery could not, alone, justify the decision to perform it. However, the decision withstood logical analysis, had been reasonable, and the patient had been warned of the risks.

The court was required to determine issues of liability and causation in a clinical negligence claim brought by a 59-year-old patient who underwent three operations on her right knee, performed by the defendant trust in July 2010, May 2011 and April 2013.

The patient had had longstanding knee problems. An arthroscopy in March 2009 resulted in a finding of grade II and grade III osteoarthritis. After the arthroscopy, the patient complained of knee instability, swelling, and increased pain. Steroid injections provided temporary relief. In April 2010 she was seen by a trauma surgeon, who wrote to her GP indicating that she wanted to undergo a right unicompartment knee replacement instead of further injections or arthroscopy, and that she was aware of the complications involved in the procedure. The decision to perform the first operation was made three weeks later in a consultation with the surgeon. He recorded that he and the patient had had a long discussion about treatment options, but that the patient was very keen to have a joint replacement. It was not disputed that the operation was not successful. A decision was taken to perform a right total knee replacement (the second operation). The patient derived no real benefit from that operation either. She was subsequently diagnosed with chronic regional pain syndrome, and it was decided in April 2013 to do a revisionary procedure. That involved replacing a femoral implant inserted during the second operation with one of a smaller size. In July 2013 it was noted in her records that the trust’s pre-operative assumption was that the femoral component inserted during the second operation was oversized. The author commented that “I am not sure if this could account for all [the patient’s] pain and symptoms”.

The issues were whether (1) it had been negligent per se to perform the first operation; (2) the patient had consented to the first operation; (3) the femoral component used in the second operation was too large.

HELD: (1) The patient’s recollection of the April 2010 consultation was that the surgeon had been very positive about performing the first operation and that his reassurance had prompted her to agree to it. The clinicians’ evidence was that the patient had reached a stage where she was unwilling to contemplate any treatment other than a knee replacement. The court was satisfied that the patient had made it abundantly clear that she was intent upon having knee replacement surgery. It emphasised however, that the mode of treatment was always a clinical decision; the mere fact that a patient was insistent upon a certain treatment could not, on its own, justify such treatment being provided. Assessing the surgeon’s background and experience, the court was satisfied that his notes were accurate and that he had been heavily influenced by the arthroscopy results, the fact that other treatment options had been exhausted, the patient’s wishes, and the extent of her pain and the degree to which it was compromising her daily activities. He had genuinely believed that a unicompartment knee replacement had good prospects of relieving the pain and restoring good function, hence his reassurance. Neither expert witness would have offered the patient the first operation. Both agreed that only a minority of orthopaedic surgeons would have performed it in such circumstances. However, one thought it a reasonable decision, whereas the other considered that the operation had no prospects of success and that the decision to perform it was one which no responsible body of surgeons would have taken. The court was satisfied, on the evidence, that the decision to perform the operation withstood logical analysis and had been reasonable (see paras 29-34, 38-42, 58-59 of judgment).

(2) The patient had given informed consent for the first operation. Her evidence that she had not been warned of the risks, and that if she had been, she would not have consented to the operation, was coloured by the outcome of the surgery and subsequent events. The clinicians’ evidence as to the discussions during consultations about the risks of surgery and reasonable alternative options was reliable. Furthermore, the patient had signed a consent form identifying “serious or frequently occurring risks”. The fact that she had already been prepared for surgery when she signed it did not mean that she had not been in a position to give informed consent (paras 60-65).

(3) The femoral component used in the second operation erred on the large side, but the surgeon had not been negligent in selecting it (paras 70-71).

Erica Power was instructed by Capsticks.

The Judgment is available here.


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