Woman left with one leg shorter after hip surgery, takes on ACC by herself and wins

A woman left with one leg shorter than the other after hip replacement surgery took on ACC herself, and won. Photo / 123RF

A woman who ended up with one leg shorter than the other after surgery for a hip joint replacement took on ACC alone, and won.

Now, all that Susan Peake wants is to be able to buy the special shoes she needs, now and in the future, to correct the limp she’s been left with.

The 71-year-old was initially denied ACC cover for the discrepancy in leg length, assessed at a range between 5-10mm and up to almost 2cm, after the routine surgery to replace her hip joint in late 2015.

The variations in measurement were linked to how different specialists measured them.

The retired social worker who stands 1.6m-tall (5ft 3 inch) imagines that the “party trick” she performed before the judge, which highlighted the difference in her leg length, helped get her appeal across the line.

“I took my shoes off and stood up and said, ‘If you look at my head you’ll see it go up and down as I stand on one leg and then the other’.”

Susan Peake was initially denied ACC cover for the discrepancy in leg length. So she picked up the fight alone, and won. Photo / RNZ, Angus Dreaver

Peake had sought ACC cover for a treatment injury because the difference in her leg length was “not an ordinary consequence of treatment”.

ACC said it was, and in January 2022 it declined the cover.

However, Peake did receive cover for the bursitis (inflammation of joint pads) that occurred from the surgery, which ACC considered was not an ordinary consequence of the operation.

A review of the decision declining cover was dismissed later that year, noting disagreement between the orthopaedic surgeons as to the extent of the leg length discrepancy.

Peake appealed the decision to the District Court.

“I just thought, ‘This isn’t fair, I know I’m right’,” she told NZME.

Judge Denese Henare’s decision this month to allow the appeal means Peake is entitled to claim for ACC cover, for complications that have arisen as a result of ending up with one leg longer than the other.

The judge said that based on the evidence, the severity and duration of Peake’s functional instability and pain problems were nothing like an ordinary consequence of her hip replacement surgery.

The surgery

A couple of weeks after her surgery in November 2015, Peake told her orthopaedic surgeon John Rietveld that one leg felt longer, but was assured otherwise.

In January the following year Peake again pointed it out and that she was starting to get pain in her lower back.

The surgeon recommended that she work reduced hours and continue with physiotherapy.

Following an appointment in April 2016, the same doctor noted that Peake was “still a bit frustrated” because her hip still felt very uneven. He said it would take time to settle down.

At another follow-up in June, Rietveld reassured Peake that the discrepancy was an “apparent difference” rather than a “true difference” based on pelvic tilt, and suggested that Peake try inserting a small raise in her shoe.

He referred her to a podiatrist for an insole.

In February 2021, another orthopaedic surgeon, Ian Penny commented on Peake’s left shoulder and also her right hip.

He offered advice on how a marginal increase might be gained but, in reality, it would take another joint replacement to fix properly.

Peake was referred to another surgeon, Nicholas Lash, for a second opinion.

He reported in March 2021, that Peake’s leg length had been clinically increased by about 7 to 10mm, resulting in complications including her being “plagued” by lower back issues.

Penny cautioned against further hip replacement surgery and suggested Peake should use a heel raise, probably about 12mm in height.

Rietveld wrote to ACC in October 2021 and reiterated that he did not believe there was a major discrepancy in leg length, and that what Peake felt was because of a “slight increase in offset” in the hip joint replacement which would make her leg feel long.

Judge Henare said it appeared the claim for ACC cover was declined on an expert opinion that a leg length difference of up to 10mm after a hip replacement was within the expected margin of error and usually not obvious.

The broad consensus among experts was that less than 10mm of difference was acceptable but there was no agreed standard on how to measure.

Post-review evidence showed that in October 2022, radiologist Andrew Li concluded that the difference in Peake’s legs was 1.7cm.

In April 2023 a clinical advisory panel reviewed the X-rays and CT scans and concluded the discrepancy was between 5mm and 10mm and therefore not a personal injury caused by the hip joint replacement surgery.

Peake sought further expert opinion, despite a cancer diagnosis last August, followed by surgery and treatment.

She told NZME she was not fazed by representing herself, but it helped that she had done a master’s degree in policy, that she was familiar with court procedure, and that she was a capable writer.

“I went up against seven surgeons.”

The judge’s view

Judge Henare acknowledged Peake’s evidence that supported claims about what she had suffered.

“Her everyday life has been hard: Physically, emotionally, psychologically, and financially.

“She has constant levels of ongoing pain in her lower right back caused by tightening of the muscles running from the pelvis to the bottom rib on either side of her spine.”

The judge said the instability Peake experienced made her feel unsafe.

“She has followed medical advice to improve the biomechanics of walking and gait but has had no improvement in functionality.

“The reassurances she was given by Mr Rietveld that all would settle down following the hip replacement, have not eventuated,” Judge Henare said in reaching her decision.

Peake says she has searched worldwide and spent several thousand dollars looking for a therapy solution, alongside the yoga and pilates she did and the special built-up shoes she needed, which cost up to $300 a pair.

She now hoped to get cover for footwear needs.

ACC said it accepted the court’s findings.

The corporation’s acting deputy chief executive for corporate and finance, Kelly Siddall, said they would now work with Peake to understand what support she needed for her recovery.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.