The patient was an active 43-year-old woman with a history of right knee pain for several years without any particular injury. She had been diagnosed with patellar lateral tilt and chondromalacia, and had tried physical therapy, steroid injections, and other treatments without success. The potential defendant, Dr. M, recommended surgery. His pre-op visit note says: “We will plan on doing diagnostic arthroscopy with chondroplasty and possible lateral release of the right knee.” The patient says those are the only procedures they ever discussed. Yet for some reason, Dr. M ended up doing microfracture procedures on the patella and medial femoral condyle, along with a partial lateral meniscectomy.
The consent form for the surgery, which we are attaching, lists the procedure in Paragraph 1 as “arthroscopy with chondroplasty and possible lateral release of the right knee.” Paragraph 3 of the consent form says:
"I recognize that during the course of this procedure, unforeseen conditions may arise that could require additional or different procedures not described in Paragraph 1. I, therefore, request and authorize that the above named physician and/or agent(s) perform such procedure(s) as necessary. This authority shall extend to remedying conditions that are not known to the above named doctor at the time of the procedure referenced in Paragraph 1."
The patient says not only had she never heard of microfracture before her surgery, but she never would have consented to it – and she has some good reasons, including the much longer and more difficult recovery, which caused problems for her as a single mother. When she asked Dr. M why he did it, his explanation was that he had found two unexpected large full-thickness cartilage defects. As the patient points out, one of the defects was described in Dr. M's pre-op note based on a previous MRI, so they should not have been unexpected at all. Did Dr. M. get appropriate informed consent for microfracture going in? Did the language in Paragraph 3 of the consent form about “additional or different procedures” give him discretion to do a microfracture in these circumstances?
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No questions yet!
Do you believe there might have been medical error?
Not enough information, would need to review the doctor's office notes as well as the MRI report. However, there are many different potential remedying procedures that could need to be done during a knee arthroscopy and the vast majority of patients neither need to nor want to hear the exhaustive, complete litany of these procedures. They just want the doctor to fix their injuries while they are under anesthesia. This patient consented for an arthroscopy with a possible lateral release, which is already a procedure with a somewhat complicated recovery. It is reasonable to expect that a patient would want a large cartilage lesion (or two of them) to be treated while they are anesthetized, rather than neglected, or left to be treated at another time. The recovery for microfracture is not that much longer or more difficult than recovering from a knee arthroscopy with lateral release that it would matter to most patients. The claim that the microfracture caused the patient problems which the rest of the surgery would not have caused is spurious at best, and would need to be fleshed out further. What problems in particular? Did the patient have childcare lined up for 4 weeks but not 6? Did the doctor tell the patient preoperatively that she would be recovered by a certain date? Or did he explain that recovery is variable and that there are no guarantees (which would be more accurate).
Do you believe there might have been causation (i.e. the medical error resulted in an injury)?
There is no evidence of injury. Treatment has been performed and there was no direct complication reported. The recovery time of procedures varies. The patient may have had a similar recovery period without mcirofracture. It would be difficult to demonstrate any injury here.
What makes you a good expert for this case?
I am a practicing orthopedic surgeon and have reviewed cases as an expert witness for state attorney general office
How often do you encounter cases similar to this one in your practice?
Thankfully it is not frequent to have a patient claim that a procedure was performed without their consent. However, as far as arthroscopy procedures are concerned, I encounter those quite regularly.
Do you believe there might have been medical error?
It is standard practice in the community to perform a micro fracture in chondral defects that are found incidentally on knee scopes. The informed consent was very broad in its language and the patient wanted she could have asked for a detailed list of what some of those procedures could be - it would be a short list If the patient doesn't want to do what's necessary to success like non weight bearing etc then she could elect not to do that - no harm should come to the knee from the microfracture - it just may not work as intended if she can't do the restrictions
Do you believe there might have been causation (i.e. the medical error resulted in an injury)?
I don't see any downside to doing the micro fracture. It would not cause any detriment to the knee if she chooses to or not to follow the protocol for treatment
What makes you a good expert for this case?
I am a board certified sports medicine fellowship trained orthopedic surgeon in practice for 20 years.
How often do you encounter cases similar to this one in your practice?
15-20 times per year I perform a scope of the shoulder hip or knee and have to make a decision to perform a possible microfracture. Sometimes it was discussed preop sometimes it was not.
Do you believe there might have been medical error?
The consenting process here as presented did not support the surgeon doing any cartilage restoration surgery (microfracture, MACI, OCA, etc.).
Do you believe there might have been causation (i.e. the medical error resulted in an injury)?
Informed consent must thoroughly explain the operative techniques that are planned during the upcoming surgical procedure. The rehabilitation program details and requirements must also be explained to the surgical patient. Microfracture (bone marrow stimulation) is a very detailed procedure that requires a strict adherence to the peer-reviewed described rehabilitation protocol with crutch ambulation and limited weight bearing for at least 6 weeks. The failure to discuss the ramifications and morbidity of performing a microfracture technique on this patient's knee cartilage lesions leads to an expected treatment failure as the patient is not appropriately prepared to undergo the detailed postoperative rehabilitation and abide by the limited weight bearing required for up to six weeks. Inadequate consent for the more invasive and morbid microfracture technique causes a treatment failure and a wasted surgical undertaking. Peer -reviewed results dictate that a prior microfracture also makes a potentially more appropriate cell-based cartilage restorative procedure (performed downstream with consent) such as MACI (matrix-derived autologous chondrocyte implantation) less likely to succeed. Thus, the unconsented inappropriately performed microfracture will likely force the most advanced cartilage restorative surgery of a fresh matched-for-size osteochondral allograft (OCA) transplantation plug placement downstream for this patient.
What makes you a good expert for this case?
I am a sports medicine fellowship trained board certified orthopaedic surgeon with an extensive tertiary national referral knee and shoulder joint restoration practice. I perform a very high volume of cartilage restoration surgeries to include fresh osteochondral allograft transplantations on a weekly basis. We teach our residents and fellows to always obtain appropriate full consent in detail for all potential planned procedures to include operative and nonoperative measures. As important is to review in detail the disparate rehabilitation requirements that exist between debridement/removal procedures and restoration procedures. The mechanical symptom and pain removing procedures (debridement and chondroplasty) are very low morbidity and allow patients to fully weight bear and "advance as tolerated" with all activities of daily living. Cartilage restorative procedures (microfracture and cartilage transplantation, etc.) are a much higher level of morbidity and require a very structured rehabilitation protocol with limited weight bearing for at least 6 weeks and extensive physical therapy. Chondroplasty and microfracture, are, therefor dichotomous procedures. The correct procedure must be fitted to the correct patient at the correct time. Each patient has unique nonmodifiable variables that must be taken into account when disusing surgical treatment options during the consenting process. This case involves a single parent who cannot abide by the strict postoperative parameters necessary to allow for microfracture success. These variables were not taken into account nor discussed during the consenting process. This case appears to represent the wrong surgery surgery on the wrong patient at the wrong time.
How often do you encounter cases similar to this one in your practice?
I manage similar cases on a daily basis in my practice. I perform more advanced cartilage restorative procedures (e.g., osteochondral allografts) than any other clinic in the United States.
Do you believe there might have been medical error?
The lay population (in my opinion) often operates under the assumption that an MRI tells everything that's wrong; this is simply not true. While the MRI may have identified the cartilage lesion, it often is not possible to know if other conditions exist where a microfracture would be indicated (size of lesion, focal defect with surrounding normal cartilage, amount of other compartment involvement). It is a common to find meniscal pathology and cartilage pathology not seen on an MRI and a " game time " decision often needs to be made. I don't think it's reasonable to expect a surgeon to list every single possible abnormality that may be identified. If that's the "standard" then is it safe, reasonable or efficient to have the person come back for a second procedure? I would argue this person would have had more down time and be more upset if the surgeon did not do the procedure and recommended it after the fact as a second procedure. Also, the language in consent does imply that other pathology may be found and need to be addressed; even though she cannot comprehend this.
Do you believe there might have been causation (i.e. the medical error resulted in an injury)?
While a microfracture may not cure the pain from a cartilage lesion, there is no reason to think it made her worse. She seems just inconvenienced.
What makes you a good expert for this case?
Orthopaedic Surgeon Specialize in Sports, knee and cartilage surgery
How often do you encounter cases similar to this one in your practice?
Often. I do many arthroscopies every year and often find unexpected cartilage or meniscal damage.
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