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Delay in surgery and improper performance

by Laura Hale Brockway, ELS, Assistant Vice President, Marketing, and 
Winnie Alobuia, Risk Management Representative


On December 24, a 64-year-old man fell from a ladder and injured his left forearm. He came to the emergency department (ED) of a local hospital, and an x-ray showed a displaced and comminuted fracture of radial and ulnar shafts.


Physician action

A CT scan of the cervical spine found no acute fracture but revealed diffuse degenerative disc disease manifested by prominent spondylosis and severe disc space narrowing. The patient also had moderate to severe diffuse facet joint arthropathy present.

On December 25, a physician assistant (PA) from the on-call orthopedic group noted that the patient’s fracture was unstable and would require surgery. The ED physician spoke with Orthopedic Surgeon A who recommended open reduction and internal fixation the next morning. The ED physician applied an ortho-glass splint and administered 2 gm of cefazolin. The patient was admitted.

From December 25 to December 26, Hospitalist A followed the patient. The orthopedic group’s PA managed the patient’s breathing treatments for asthma.

Orthopedic Surgeon A took the patient to surgery on December 27. He had planned to perform the surgery on December 26, but the operating room schedule was full that day. During the procedure, Orthopedic Surgeon A noted a transverse component that was reduced. He fixed it with a 5-hole dynamic compression plate and used two screws both proximally and laterally. Anteroposterior (AP) and lateral fluoroscopic views showed anatomically reduced radial shaft fracture. The screws and hardware were intact with no significant protrusion on the dorsal cortex.

Orthopedic Surgeon A then focused on the ulna and used a 5-hole one-third tibial plate and proximally and distally fixed the plate with one locking and one non-locking screw. Final AP and lateral fluoroscopic views showed anatomically reduced radius and ulnar fracture. The PA assisted Orthopedic Surgeon A during the procedure including wound closure.

The patient was discharged on clindamycin and told to follow up with Orthopedic Surgeon A in two weeks.

The patient returned on January 7 and was seen by the PA. He reported pain in his thumb and pain with flexion, but no numbness or tingling. The PA applied a brace and refilled the patient’s hydrocodone prescription. The patient was told to return in three weeks.

The patient sought a second opinion on January 27. During this visit to Orthopedic Surgeon B, he reported fever and that his left arm was swollen, hot, and tender. He requested an x-ray and stated he started antibiotics two days earlier. An x-ray taken on January 28 showed the metal plate and screws transfixing comminuted, but mainly transverse fractures of the distal shaft of the radius and ulna in near anatomic positions. There was no loosening or fracture of the hardware.

The patient returned to Orthopedic Surgeon A and reported that pain, stiffness, and swelling had increased over the last few days. The prescribed antibiotics had improved the pain, but he was also experiencing tingling in his fingers. He reported he was not using his arm much. Orthopedic Surgeon A documented that the wound was healing well with no signs of infection. He planned for the patient to complete occupational therapy. The patient was to return in three weeks.

The patient started therapy on February 11 and reported pain in his wrist, tingling in his fingers, and increased redness around the scar. He was treated with antibiotics. On March 22, Orthopedic Surgeon A noted the range of motion had improved but numbness was constant. He attributed it to underlying cervical radicular disease that could make him prone to carpal tunnel syndrome following the injury. He ordered EMG studies and instructed the patient to return as needed. The patient did not return to Orthopedic Surgeon A.

On March 29, the patient was discharged from occupational therapy after failing to keep his appointments. The patient next came to Orthopedic Surgeon C. He planned an EMG and labs. An indium white blood cell scan performed on April 22 suggested inflammation versus infection.

The patient was referred to a neurologist who performed an EMG on March 28. The results showed normal motor conduction of the left median and ulnar nerves and moderate right median nerve lesion at the wrist compatible with right carpal tunnel syndrome.

The patient returned to Orthopedic Physician C on May 12. The physician was concerned about underlying infection and told the patient the ulnar hardware may need to be removed since it was badly positioned. The patient declined reconstructive surgery.

An infectious disease physician saw the patient on May 24 and suspected a methicillin-resistant Staphylococcus aureus infection. He recommended a bone biopsy and discussed this with Orthopedic Surgeon C.

On July 7, Orthopedic Surgeon C removed the hardware and took a bone biopsy. During the procedure, he noted the plate was loose and did not have good fixation proximally with some screws being in the previous fracture site. He removed the plate and did an extensive debridement of all fibrinous tissue within the canal of the ulna and in the non-union. The bone biopsy was positive for coagulase-negative staphylococci.

The patient continued treatment with Orthopedic Surgeon C and the infectious disease physician, though he was noncompliant with orders regarding IV antibiotics. In September, the patient had increased stability at the fracture site and there was no sign of infection.



A lawsuit was filed against Orthopedic Surgeon A. The allegations included a three-day delay in surgery; failure to use proper plate size with enough screws; failure to obtain proper bone fixation; and failure to recognize improper fixation on x-ray.

Legal implications

The plaintiff’s expert centered his criticism of Orthopedic Surgeon A on the delay in performing the surgery. This expert felt surgery should have been done in 24 hours, and this delay led to the patient’s infection. He also stated Orthopedic Surgeon A used a plate that was too short and not properly fixated due to the length and not using enough screws. This led to a non-union that should have been found and discussed with the patient. The plaintiff’s expert also criticized the defendant for not diagnosing the infection during the follow-up appointments.

The defense was unable to find a supportive orthopedic expert. The consensus was that the 3-day delay in surgery was not within the standard of care, the fixation plates were too short, and not enough screws were used on each side of the fracture. One screw traversed the fracture site and caused the non-union that later occurred.

Regarding causation, the patient had pre-existing bone degenerative issues that put him at risk for fractures. The infection that developed was described by an infectious disease specialist as “not harmful and very common on people.” Additionally, the patient had no obvious signs or symptoms of infection as of four months after surgery. It was also discovered that the patient was non-compliant with his IV antibiotics and with physical therapy. 

Though the defense had expert support on the infection issue, the standard of care issues relating to the delayed surgery, plate size, and position of the screws were considered weaknesses in the defense of this case.



This case was settled on behalf of Orthopedic Surgeon A.


Risk management considerations

According to defense consultants, Orthopedic Surgeon A’s actions fell below the standard of care. They felt that a 3-day delay in surgery was too long. When applicable, reasons for deviating from the standard of care should be thoroughly documented. If a delay in treatment could significantly compromise the patient’s outcome, consultation with the facility’s risk management team is warranted.

Issues with patient follow up and noncompliance were noted. The patient was noncompliant with the treatment plan and missed appointments for follow-up visits. However, it was unclear if any attempts were made by the practice to contact the patient about follow-up care. It was also unclear if Orthopedic Surgeon A referred the patient to Orthopedic Surgeon C.

It is recommended that practices develop written no-show processes to guide office staff members on appropriate actions. Documentation indicating any attempts to contact patients who miss scheduled appointments should be noted in the patient’s chart, and the treating physician notified.

If a patient refuses a recommended treatment, providers should document their discussion with the patient regarding potential risks of refusal. In some circumstances, providers may wish to consider the use of written informed refusal documentation. An informed refusal form may include the diagnosis, treatment recommendation, risks of refusal of treatment or testing, and the patient’s desire to waive or postpone recommended care. If used, the form should be signed by the patient and kept in the patient’s record.


Laura Hale Brockway can be reached at

Winnie Alobuia can be reached at