Hip Replacement Negligence Claim UK

When Does Hip Surgery Amount to Negligence?

Not every poor outcome after a hip replacement is negligent. Every operation carries recognised complications, and a patient who has been properly warned and treated to an acceptable standard has no claim simply because the result disappointed them. Negligence arises where the treatment fell below the standard of a reasonably competent practitioner in that field, and that failing caused injury.

Typical fact patterns that lead to a hip replacement negligence claim include:

• Malposition of the acetabular cup or femoral stem, causing instability, dislocation or accelerated wear
• Significant leg-length discrepancy that could and should have been avoided with proper pre-operative planning
• Damage to the sciatic, femoral or superior gluteal nerve through poor surgical technique
• Vascular injury to the femoral artery or vein
• Post-operative infection where signs were missed or antibiotics were not given in line with guidance
• Selection of an unsuitable implant for the patient, or failure to obtain informed consent about the risks and alternatives
• Missed peri-prosthetic fracture on imaging
• Delayed diagnosis of a failing or loosening prosthesis leading to avoidable revision surgery

Where any of these issues result in extra pain, further surgery or lasting disability, a claim may be viable.

Breach of Duty and Causation Explained

A clinical negligence claim has two legal ingredients. The first is breach of duty, judged by the Bolam test as refined by Bolitho: did the treatment fall below the standard of a responsible body of orthopaedic opinion, and is that body's view logically defensible? The second is causation: on the balance of probabilities, did the breach cause an injury that would not otherwise have occurred?

Causation is often the harder hurdle. A patient who was already destined for revision surgery because of an unrelated problem may struggle to show that a surgical error made a material difference. Independent expert evidence from an orthopaedic surgeon, and sometimes a microbiologist, radiologist or vascular surgeon, is central to both limbs of the test.

Consent claims sit slightly differently. Following the Supreme Court's decision in Montgomery, a patient must be warned of any material risk that a reasonable person in their position would want to know. Failure to disclose a material risk, followed by an injury from that unmentioned risk, can found a claim even where the surgery itself was technically competent.

Negligence Versus a Known Complication

Hip replacement carries well-documented risks: dislocation, infection, deep vein thrombosis, leg-length inequality, nerve palsy, loosening and eventual wear of the prosthesis. If one of these materialises despite reasonable care, it is not negligence. The complication has to be traced back to a failing in the treatment itself.

Practical examples help draw the line. A dislocation soon after surgery, in a properly positioned cup, may simply be bad luck. A dislocation caused by a cup implanted well outside the accepted safe zone for inclination and anteversion is a different matter. A small leg-length difference of a few millimetres is generally unavoidable; a difference of two centimetres that produces a limp and back pain, where templating was inadequate, points towards a breach.

Solicitors therefore look closely at the operation note, the pre-operative templating, post-operative imaging and the National Joint Registry record before advising on prospects.

Defective Implants and Product Liability

Some claims are not about surgical technique at all but about the implant itself. Metal-on-metal hip prostheses, in particular, have been the subject of extensive litigation because of the release of cobalt and chromium ions, soft-tissue reactions (pseudotumours) and early failure requiring revision.

Where the injury is caused by a defect in the product, the Consumer Protection Act 1987 provides a route against the producer. The claimant must show that the product was defective, in the sense that its safety was not such as persons generally are entitled to expect, and that the defect caused the injury. Fault does not have to be proved, which is a significant advantage over an ordinary negligence claim.

Product claims can run alongside a clinical negligence claim against the surgeon or trust, for example where the implant was defective and the surgeon also failed to act promptly on rising blood metal ion levels or worsening imaging.

Revision Surgery and Long-Term Losses

Where negligence leads to a failed primary hip replacement, revision surgery is often required. Revision procedures are longer, more complex and carry a higher rate of complications than a first-time replacement. Bone stock is reduced, infection risk rises and the functional outcome is usually worse.

These features push claim values up. A patient may need:

• One or more further operations, sometimes staged for infection control
• Extended hospital admission and rehabilitation
• Long-term physiotherapy and pain management
• Mobility aids, home adaptations or a stairlift
• Paid or gratuitous care during recovery periods
• A career change or early retirement where heavy or standing work is no longer possible

Each of these can be recovered as special damages where properly evidenced. Life expectancy, work pattern and pre-accident health all feed into the multiplier used for future losses.

How Compensation Is Valued

Damages fall into two heads. General damages compensate for pain, suffering and loss of amenity. Valuation is guided by the Judicial College Guidelines, which set out bracket ranges for different injuries, including hip and pelvis injuries, leg-length discrepancy, nerve damage and the psychological impact of failed surgery. The bracket that applies depends on severity, permanence of symptoms, the number of further operations required and the effect on work and daily life. This page does not quote figures because published brackets are updated periodically and individual valuations turn on medical evidence.

Special damages cover measurable financial losses caused by the negligence, both past and future. Typical heads include lost earnings and pension, the cost of private treatment or revision surgery, travel to appointments, aids and equipment, care and case management, and any adaptations to the home. Interest is added to past losses.

Contributory negligence rarely features in clinical negligence claims but can arise, for example where a patient failed to attend follow-up appointments or ignored clear post-operative advice.

Time Limits and the Date of Knowledge

Under the Limitation Act 1980, a clinical negligence claim must generally be issued at court within three years. Time runs from the date of the negligent act or, if later, the date of knowledge, meaning the date on which the injured person first knew that their injury was significant and capable of being linked to the treatment received.

Date of knowledge is particularly relevant in hip cases because problems may only emerge years later, when the prosthesis loosens, blood metal ion levels climb or a revision is proposed and the underlying error becomes apparent. A patient who reasonably attributed ongoing pain to the natural course of surgery may only acquire the necessary knowledge when a second surgeon explains what went wrong.

Exceptions apply for children (three years from their eighteenth birthday) and for adults who lack mental capacity (no time limit runs while incapacity continues). The court also has a discretion under section 33 to allow a late claim, though this is exercised sparingly. Do not rely on it: seek advice promptly.

NHS, Private Treatment and Funding

Where the surgery was carried out on the NHS, the claim is handled by NHS Resolution on behalf of the trust. Where it was performed privately, the claim lies against the treating surgeon (who must carry indemnity) and, depending on the contract, the private hospital. Anaesthetists and other clinicians can be joined where their care is in issue. Product claims against an implant manufacturer follow a separate route.

Most patients fund the claim through a conditional fee agreement, commonly called no-win-no-fee. Nothing is paid to the solicitor unless the claim succeeds. On a successful claim the solicitor charges a success fee, which is capped by law at 25 per cent of the damages awarded for pain, suffering and loss of amenity and past losses. After-the-event insurance is usually taken out to cover the risk of paying the defendant's costs and disbursements if the claim fails.

Before signing, ask for a written breakdown of the deductions from your damages and a realistic view of prospects and likely timescale, which for revision-surgery cases is often two to four years.

This page provides general information about English and Welsh law and is not legal advice; please consult a qualified clinical negligence solicitor about your own circumstances.

Frequently asked questions