Issue: July 2013
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New Hips, New Knees, New Problems: Hip and Knee Replacements

Introduction

Liability Issues for Hip and Knee Replacement

Hip and knee replacements are among the most common surgical procedures performed in the United States. These surgeries, along with revision surgeries that are performed to correct problems that develop after the original procedure, are increasing in part due to new implant devices. The advancing age of the baby boom generation indicates that the incidence of these procedures, most often performed in older patients, will continue to rise.

 
Most procedures are completed without complication, restoring relatively pain-free mobility to the patient. Sometimes serious complications arise, which may result from physician medical malpractice or negligence. Other complications may result from manufacturer defects in the prosthetic hip or knee implanted in the patient during the surgical procedure. Continuing controversies over metal-on-metal and ceramic-on-metal implants have brought these surgeries to the forefront of the news.
 
Relief may be sought on a group basis in a class action or mass tort litigation. Damages awarded in successful litigation have been high.
 
Attorneys, physicians, manufacturers and others affected by injuries related to hip or knee replacements must understand the critical liability issues and medical aspects of these injuries.

The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a lack of informed consent claim, alone or as part of a medical malpractice or negligence action, related to a hip or knee replacement? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury related to a hip or knee replacement? And, what is a potential strategy for the orthopedic surgeon to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for the patient’s injury related to a hip or knee replacement? And, what is a potential strategy for the insurer to employ? 

Employers:

Can an employer be subject to liability for injury resulting from a hip or knee replacement? And, what is a potential strategy for the employer to use? 

Bonus:

How can a manufacturer avoid liability for an injury related to a hip or knee prosthetic implant? What is a potential strategy for the manufacturer to use? 


Practice the Technique: Checklists

Attorneys:

An example of facts and circumstances tending to prove medical malpractice or negligence liability for an injury resulting from a hip or knee replacement.  

Physicians:

Items a physician must consider when defending against allegations of malpractice in connection with a hip or knee replacement.

Insurers:

The insurer should check these “red flags” and inconsistencies when investigating a claim of hip or knee replacement injury.

Employers:

Use this checklist to determine if the employee’s hip or knee replacement is “work related” and occurred “in the course of the employment,” and if any further injury, such as an infection, flowed from the work-related hip or knee replacement.  

Bonus:

This litigation checklist can help the prosthetic implant manufacturer to determine if the hip or knee prosthetic implant was defective and if the use of the manufacturer’s implant was the cause of the patient’s injury. 

Expert Analysis

What Is the Origin and Status of Products Liability Litigation Involving Hip Replacements?

Paul Sizemore, J.D. and Jaime E. Moss, J.D.

What Medical Concerns Do Defective Hip Implants Present?

Elise Alpert R.N., J.D.

Why Should Attorneys Focus on Causation in Metal on Metal Hip Cases?

John Gomez, J.D., John Fiske, J.D., and Stephanie Poli, J.D.

What Are the Most Recent Findings on Regeneration of Bone and Cartilage Using Nanometered-Structured Tissue Scaffolds?

Mark Hamming, M.D.

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in malpractice actions involving hip and knee replacements?



Medical Examples

Hip and Knee Replacement Surgery

This section provides detailed medical information on hip and knee replacements including an overview, terminology, images, prosthetic implants, patient considerations and contraindications, general surgical considerations, hip replacement surgery and implant fixation, knee replacement surgery and knee implants, revision surgery,and discusses the patient’s prognosis and ability to work.



Law and Medicine Resources

Law and Medicine Resources

Provided is a listing of law and medical resources for further information on hip and knee replacements.


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New Hips, New Knees, New Problems: Hip and Knee Replacements

Table of Contents
Introduction

Expert Analysis
   Paul Sizemore, J.D. and Jaime E. Moss, J.D.
   Elise Alpert R.N., J.D.
   John Gomez, J.D., John Fiske, J.D., and Stephanie Poli, J.D.
   Mark Hamming, M.D.

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers
   Bonus

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist
   Bonus Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Hip and Knee Replacement Surgery

Law and Medicine Resources