[2020] EHWC 1351 (QB). HHJ Sephton QC sitting as a judge in the High Court
This is the first in a two part post on this case. This post provides a summary of the decision and the second post comments on the decision and considers the application of the Bolam and Bolitho tests.
Background facts
Mr Cope is a Consultant orthopaedic surgeon who specialises in lower limb arthroplasty [1]. He had practicing privileges at Renacres Hospital, Ormskirk. The claimant had arthritic changes in both hips and he was referred to Mr Cope who performed a right total hip replacement in November 2009 and the claimant made a rapid recovery.
In November 2009 it was decided to proceed with a left total hip replacement. Mr Cope elected to use an uncemented acetabular component namely a 54mm Pinnacle socket.
Immediately following the surgery, the claimant developed serious pain in the thigh and groin. The claimant stated that he advised Mr Cope of this pain but he failed to investigate it. Mr Cope did not accept this.
Mr Cope saw the claimant in February 2011 and it was recorded that he was not doing too well and that there was painful clicking which he thought related to the psoas tendon catching over the anterior part of the cup. He advised the claimant’s GP if this continued, he would consider a psoas tendon release.
The claimant’s GP referred him for a second opinion to another Consultant Orthopaedic surgeon who performed a revision procedure in May 2016. He found that the cup was retroverted and the anterium of the cup was prominent and catching on the anterior structures. There were no signs to suggest wear of the head of the metal liner. The cup was well fixed and it was removed but the stem was left in situ. After the surgery the symptoms improved but did not resolve and the claimant underwent further revision in May 2016.
Mr Cope said that he had undergone 3 separate training sessions where he was taught how to undertake total hip replacement. He said he was not taught to check that the cup did not protrude beyond the acetabular rim. He was taught that the only issue so far as placement of the cup was concerned was whether the joint would be stable after reconstruction.
Allegations of Negligence
The claimant argued that Mr Cope was negligent in the performance of a left total hip replacement procedure in December 2019 in that:
1. When performing then procedure he permitted the acetabular component of the prosthetic hip to be prominent causing the iliopsoas tendon to be caught and causing iliopsoas tendonitis [2]
2. When he performed the left total hip replacement, he used the incorrect femoral component
3. When he saw the claimant in August 2010 he failed to record or investigate the claimant’s groin pain.
Expert evidence
The court heard evidence from two orthopaedic expert witnesses one for the claimant and one led by the defendant. The experts were able to agree on certain matters:
1. If the acetabular component is placed so that it catches the iliopsoas tendon as it passes over the exposed rim of the cup the tendon can become irritated, inflamed and painful
2. The claimant developed iliopsoas tendonitis in the region of the hip joint and this is a recognised complication of total hip replacement surgery. This can occur for reasons other than orientation of the acetabular component
3. In the present case the most likely cause for irritation was a prominent anterior acetabular component
4. The protrusion of the acetabular component beyond the anterior margin of the acetabular is influenced by anatomical variation, the degree of anteversion and the depth to which the socket was implanted
5. The focus in the case was upon the degree of version of the implant and any anatomical variation. The degree of depth of the socket was not in issue
6. The ideal variation of the acetabular component is a challenge for surgeons and the ideal position will vary between patients
7. Generally, the cup of the acetabular component should be anteverted between 15-25 degrees. The acceptable range of anteversion is between 10-30 degrees.
8. Surgeons should ensure that the acetabular component is not placed in a position that could interfere with the iliopsoas tendon such as beyond the acetabular margin of the native acetabulum
9. There was no surgical or anatomical reason in this case to leave the cup prominent
10. It was a straightforward procedure to remove the cup and re-orientate it intraoperatively if it was found to be prominent
The expert witness for the defendant said that he conducted many revision procedures and had seen prominent acetabular components “quite frequently” and “on a number of occasions” He said that this occurred as many surgeons are not as careful as they should be in ensuring that the socket is deep to the anterior bone.
The claimant’s expert gave evidence that it was easy for a surgeon to check whether the anterior aspect of the cup is prominent and may potentially catch on anterior structures as it can be visualised. He also would run his finger or instrument around the rim but was unable to refer to any textbook or other document that would demonstrate that this was the practice of the profession at the relevant time.
The Law
On the test of negligence the court was referred to the direction to the jury in Bolam v Friern Hospital Management Committee [3] and to the decision in Bolitho v City and Hackney HA [4]. Counsel for the defendant submitted that given there was evidence of a body of practice supporting what was done the claimant was forced to rely upon Bolitho.
The decision of the court
The court relied on the evidence of the surgeon who performed the revision procedure and found that the acetabular cup was not placed within the confines of the native acetabulum. The cup was not placed at an appropriate degree of anteversion and this caused the acetabular component to be prominent which was sufficient to cause irritation of the anterior structures including the left iliopsoas tendon.
It was held that Mr Cope did not ensure that the acetabular component was not placed in a position that could interfere with the iliopsoas tendon because he had never been trained to do that.
Based on the evidence from the defendant’s expert witness the court found as a fact that some surgeons undertaking arthroplasties allowed the acetabular component to stand prominent from the native bone. The court had evidence that there was a body of surgeons undertaking hip replacements who did not ensure that the acetabular component is not placed in a position that could interfere with the iliopsoas tendon.
The court did not accept the submission that if there was evidence of professional practice that supported the defendant’s practice that the claimant would require to rely upon Bolitho. It was said:
“In my view both Bolam and Bolitho require the court to examine the different schools of thought and to ask itself whether the school of thought relied upon by the defendant can demonstrate that its exponents opinion has a logical basis.”
It was concluded that there was no logical basis for neglecting to ensure that the acetabular component was not placed in a position that could interfere with the iliopsoas tendon and no good reason had been advanced for not taking this precaution. The risk of impingement was a well-recognised risk that could easily have been identified and rectified. The court saw no surgical reason for running this risk in the particular case.
It was concluded that defendant’s expert witness did not explain why Mr Cope was not in breach of duty and noted that the defendant’s expert:
“plainly thought that a surgeon ought to avoid prominence of the acetabular component. Although he gave evidence that there were surgeons who did not ensure that the acetabular component was not prominent, be clearly disapproved of their views”
“[He] did not offer a justification or rationale for neglecting to ensure that the acetabular component was not prominent. I was left with the impression that Mr Maktelow’s justification for asserting that there was no breach of duty was because he said so.” [5]
The court also found negligence in the fact that the femoral component used differed from the component used on the right side. Had Mr Cope checked the previous operation notes he would be aware that he has used a size 9KLA stem which gave risk to a materially different offset from a 9KA. It was said “I regard this as an elementary blunder which bespeaks negligence on his part.” [6].
The court did not accept the evidence of the claimant that he had advised Mr Cope of pain in August but also rejected the evidence of Mr Cope that he had conducted an examination based on the fact that there was a letter following the consultation which was accepted as accurate.
[1] Arthroplasty is a surgical procedure to restore the function of a joint. A joint can be restored by resurfacing the bones. An artificial joint (called a prosthesis) may also be used.
[2] Inflammation of the tendon or area surrounding the tendon
[3] [1957] 1 W.L.R. 583, 587
[4] [1988] AC 232, 241
[5] Para 37
[6] Para 59