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Hip damages claim rejected — Irish Medical Times.

Hip damages claim rejected

Ed Madden, BL

Ed Madden, BL, looks at a recent High Court case in which a woman claimed damages against a consultant orthopaedic surgeon in respect of a total hip replacement operation carried out at Cappagh Hospital in Dublin.

On July 22, 2003 Noelle McGowan, who was then 61 years old, was admitted to Cappagh Hospital in Dublin for left hip replacement surgery. The operation was undertaken the following day by Mr Kieran O’Rourke, a consultant orthopaedic surgeon. A week following the surgery, Ms McGowan complained to Mr O’Rourke of leg length discrepancy. A hospital note made at the time recorded: “Complains left leg is long — reassured by Mr O’Rourke.”

Ms McGowan subsequently brought proceedings in the High Court, in which she sought damages for personal injuries and loss as a result of the alleged negligence and breach of duty on the part of Mr O’Rourke.

In this regard, she claimed that he had caused her left hip arthroplasty “to be placed in an ectopic or laterally-displaced position and… to be pushed too far laterally to allow her to walk normally”.

Mr O’Rourke denied that he was guilty of any negligence or breach of duty to Ms McGowan.

When the matter came on for hearing in the High Court in February 2012, the Court was told that Ms McGowan had a history of back and neck pain. She suffered soft tissue injuries to her neck and back arising from a road traffic accident in 1982.

Substantial damages
In 1995, she injured her neck, her shoulder and her lower back area when she suffered a fall in a supermarket. Her symptoms arising from that injury were attributed to arthritic changes in both hips and, in particular, her left hip, which had been aggravated by the fall. She recovered substantial damages from the supermarket to compensate her for those injuries.

Ms McGowan told the Court that she had considerable pain and discomfort during the period immediately after the hip replacement operation and whilst she was recovering in the Caritas Nursing Home in Blackrock in Dublin.

Following her discharge from Caritas after two weeks rehabilitation, she was treated by physiotherapy which, she said, she undertook diligently. However, that did not improve her groin pain which increased in intensity; that was the same pain which had led her to attend consultant pain specialist, Dr Declan O’Keeffe, who in turn had referred her to Mr O’Rourke.

Ms McGowan told the Court she had endured “continuing and worsening pain” since the date of the surgery. Because she was unable to undertake the “athletic pursuits”, which she enjoyed prior to undergoing the procedure, she had gained three stone in weight.

Mr Kevin Hardinge, a consultant orthopaedic surgeon, testified in support of Ms McGowan’s claim. He had practised in the UK for some 30 years but was now retired from active practice.

He contended that the hip arthroplasty had been performed in an unacceptable manner because it had been displaced laterally. That claim was based upon the contention that an imaginary line formed by the upper lines of the obturator foramen and the inner margin of the neck of the femur, known as ‘Shenton’s Line’, had been displaced during the surgery in a manner which resulted in the lateral displacement of the left hip.

Wrong conclusion
In his medical report dated February 12, 2009, Mr Hardinge noted that the left hip replacement had been displaced laterally so that Shenton’s Line was displaced by up to 2cms. However, when challenged in cross-examination, Mr Hardinge re-examined the relevant x-rays and conceded that this conclusion within his report was “wrong”.

He agreed that the relevant x-ray disclosed that the left hip displacement, in fact, measured no more than 4mm. He further agreed that lateral displacement of the hip by 4mm would not, in itself, indicate negligence.

Mr Hardinge also maintained that Mr O’Rourke performed the hip replacement surgery negligently by inserting a 40mm standard stem Charnley prosthesis during surgery when he should have used a 35mm three-quarter offset version.

Prof John P McElwain, Consultant Orthopaedic Surgeon and Professor of Trauma and Orthopaedic Surgery in Trinity College Dublin, testified in support of Mr O’Rourke.

He categorically disagreed with Mr Hardinge’s view that Shenton’s Line was relevant to total hip replacement. He said it was an imaginary line which was impossible to measure because the ‘head and neck’ were taken away during surgery.

He told the Court he knew of no medical authority which recommended or prescribed the use of Shenton’s Line as a concept relevant to total hip replacement surgery.

Prof McElwain was quite emphatic that the Charnley three-quarter size prosthesis with a 35mm offset would have been quite inappropriate for McGowan. The offset would be inadequate and if used, “would probably have caused a dislocation of the hip”.

He told the court he had never used that prosthesis in any of the estimated 6,000 hip replacement operations which he had performed during the course of his career as an orthopaedic surgeon.

Giving his judgment in the case, Mr Justice Quirke said he did not find Ms McGowan to be a reliable witness and found much of her testimony inconsistent. With regard to the medical expert evidence, it had not been established that Mr O’Rourke breached Shenton’s Line during the surgery.

More importantly, it had not been established that the concept had any real or important relevance to the proper performance of total hip replacement surgery.

The judge said it had not been proved that Mr O’Rourke deviated from a general and approved practice when he used a Charnley 40mm prosthesis during the total hip replacement surgery. Indeed, on the evidence, it was more probable that Mr O’Rourke would have deviated from such a practice if he had failed to do so and instead used a 35mm three-quarter offset Charnley prosthesis.

No evidence had been adduced which would enable the Court to conclude that the leg length discrepancy in this case (the left leg was longer than the right leg by between 6mm and 13mm) should be ascribed to surgical negligence.

The Court went on to dismiss the Plaintiff’s claim.

[2012] IEHC 266.

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