Abstract
Definitions and perceptions of good and poor outcome vary between patients and surgeons, and perceived inadequate outcome can lead to litigation. We investigated outcomes of litigation claims relating to non-union and deformity following lower limb long bone fractures from 1995 to 2010.
The database of all 10456 claims related to Trauma and Orthopaedic Surgery was obtained from the NHS Litigation Authority. Data was searched for “deformity, non-union and mal-union”, excluding spine, arthroplasty, foot and upper limb surgery. The type of complaint, whether defended or not, and costs was analysed.
241 claims met our criteria, 204 of which were closed, and 37 unsettled. Deformity/mal-union constituted 97, and non-union 143. Coronal/sagittal deformity cost £4.2 million, mean £45,487 (60% received compensation). Rotational mal-unions cost £1.6 million, mean £114,263 (87% received compensation). Non-union cost £5.3 million, mean £75,866 (60% received compensation).
Mean legal fees for coronal/sagittal deformity was £18,772, rotational deformity £37,384, and non-union £24,680. The total cost of litigation was £12.2 million, with a mean of £59,597 per settled claim. The mean pay-out for all confirmed negligence/liability was £56,046 (£1,300–£500,000, median £21,500) per case.
Non-union is an accepted complication following fracture surgery. However, this does not mitigate against non-union being seen as representing a poor standard of care. While it is unclear whether the payouts reflect a defensive culture or were due to avoidable errors, and notwithstanding the limitations of the database, we argue that failure of the index surgery should prompt a referral to a specialist centre.
The cosmetic appearances of rotational malalignment results in higher compensation, reinforcing outward perception of outcome as being more important than harmful effects.
We also note that the database sometimes contained conflicting and incomplete data, and make a case for standardisation of this component of the outcome process to allow for learning and reflection.
