Presentation
A 56-year-old man with a history of fibromyalgia and depression went to his primary care physician due to sensory changes in his upper arms. The patient was referred to an orthopedic surgeon.
Physician action
Orthopedic Surgeon A saw the patient and ordered nerve conduction studies, which confirmed a diagnosis of bilateral carpal tunnel syndrome. The surgeon also ordered night splints for the patient’s wrists.
One week later, Orthopedic Surgeon A operated and completed a carpal tunnel repair surgery on the patient’s right side. All appropriate consent forms were signed and the procedure went as planned. The patient attended his postoperative appointments and was noted as having great results.
A second carpal release surgery was performed six months later to repair the patient’s left side. Again, the surgery was noted to be successful and without incident.
During the follow-up visit two weeks later, the patient stated that his left-hand fingers were still numb and he was experiencing elevated pain—at a “9/10 level.”
Orthopedic Surgeon A reasoned that some compression neuropraxia of the median nerve might be present. The patient agreed to wait six weeks to see if the condition improved; if not, a nerve conduction study would be completed.
Within two weeks, the patient returned reporting continued numbness and pain in the left hand. Orthopedic Surgeon A treated the patient with injections of lidocaine, bupivacaine, and methylprednisolone. The surgeon also referred the patient to a pain management specialist.
The pain management specialist noted symptoms of “constant, severe, burning and tingling in the [left] index and middle finger and thumb and along his palm and wrist….aggravated by touch.” The specialist noted that the patient exhibited early signs of complex regional pain syndrome (RSD).
A referral was made to another orthopedic surgeon for evaluation. Orthopedic Surgeon B performed a nerve conduction study and noted that the test showed complete resolution of the carpal tunnel syndrome on the right, but progression of the condition on the left. Orthopedic Surgeon B documented that the patient had a left hand and wrist median nerve injury, possibly precipitated by the surgery.
Subsequent studies confirmed pain and sensory deficits to the left hand. During surgery to explore and repair the left median nerve, Orthopedic Surgeon B found a large amount of scar tissue inside the carpal canal attached to the median nerve.
Orthopedic Surgeon B worked to free the nerve, revealing an atypical Y appearance in the field with two apparent extensions proximally to the one distally, consistent with injury. At the time of this surgery, the patient’s medications were levothyroxine; hydrocodone-acetaminophen 5,500 mg; and gabapentin 300 mg.
Orthopedic Surgeon B informed the patient that the injury was likely due to the previous surgery. The patient continued to have pain in subsequent follow-up visits, ranging anywhere between 6 and 10. The patient requested additional physician opinions and testing.
Approximately nine months later, a new physician, Orthopedic Surgeon C, took the patient to surgery to redo the left carpal tunnel release. He discovered “profound scarring of the median nerve throughout the previous operative site.”
He was able to fully mobilize the nerve; dissect the median nerve along with its distal branches; and mobilize the ulnar median nerve with subcutaneous fat. The patient experienced temporary relief from pain and improved range of motion, but the severe pain returned.
Allegations
The patient filed a lawsuit against Orthopedic Surgeon A, alleging negligence when performing the left carpal tunnel release and injuring the left median nerve. The surgeon’s group was also named in the suit for vicarious liability.
Legal implications
Multiple orthopedic surgeons reviewed this case and agreed that laceration of the median nerve may have occurred during the first surgery; however, nerve injury is a known complication of carpal tunnel surgery.
Disposition
This case was settled on behalf of Orthopedic Surgeon A, due to the seeming permanence of the patient’s condition.
Risk management considerations
When postoperative complications lead to allegations of improper performance, timely and accurate documentation of the patient’s medical treatment — along with the physician’s reasoning — greatly strengthens the defensibility of the case. The medical record is often the only document the jury is allowed to evaluate during deliberations.
In this case, the experts voiced concern that Orthopedic Surgeon A did not fully or accurately report the results of the left-hand surgery in the record. Chapter 165.1 of the Texas Medical Board Rules requires that the content of a medical record be “complete, contemporaneous and legible.” However, templates used with electronic medical records can sometimes create the impression that notes are incomplete.
The use of templates is widespread and can save the physician time in documentation. However, if every patient encounter appears the same — except for the date and other minor changes — the records may not appear “contemporaneous.” To a jury, records that are hard to distinguish from one another lack credibility and could portray the physician as someone who cuts corners to the detriment of the patient.
Also, one expert reviewer believed that Orthopedic Surgeon A might have rushed the patient to a second surgery based on the success of the first surgery. When building a chronology within the operative notes, it was calculated that the surgeon would have taken approximately five minutes to perform the entire procedure. This could indicate incomplete records and bring the surgeon’s attentiveness and treatment approach into question.
Standard of care guidelines from a specialty society can also aid in a physician’s defense. One consultant noted that the splints reduced the patient’s pain by half in less than a week. He further stated that an alternative approach to surgery — based on standard of care guidelines — might have been to wait to see if the pain resolved through use of the splints.
