By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles

Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles

Morgan Lynch, 2018 JD Candidate
Pepperdine University School of Law
Malibu, CA

News: In summer of 2012, a woman underwent surgery on her knee, including the insertion of a small, localized artificial component. The patient returned in 2014 for a follow-up appointment, including minimally invasive surgery. She returned shortly thereafter, complaining of knee pain, swelling, and other symptoms. The physician assistant drained an abscess in the patient’s knee to reduce the discomfort and swelling. The patient returned several times for additional treatment, complaining of similar but worsening symptoms. The physician drained the abscess and concluded that the fluid did not indicate any signs of infection. The physician did not test the fluid or consult an infectious disease specialist.

The patient sought a second opinion from a hospital, which then tested the fluid from the drained abscess and found indications of infection. Assuming the infection and ensuing treatment was a cause of negligence by the initial physician, the patient filed suit against him and the medical facility in which he operated. The jury returned a verdict in favor of the defendants.

Background: On Aug. 2, 2012, a woman sought care for her right knee. Surgery was performed on the patient’s knee, including medical femoral condyle resurfacing and implantation of an arthrosurface component. In 2014, the physician performed further arthroscopic surgery on the patient’s right knee.

After the 2014 procedure, the patient presented to the physician at an orthopedic and sports medicine facility for postsurgical care. The patient returned on multiple occasions, complaining of effusion, ecchymosis, swelling, loss of range of motion, and pain. On July 9, 2014, the physician assistant aspirated fluid from the patient’s knee and noted that the patient was experiencing symptoms not unusual for an individual who underwent surgery two weeks prior. Specifically, the physician assistant noted mild swelling, reasonable range of motion, and that the patient walked without the use of assistive devices. The patient was prescribed physical therapy and was instructed to return in one month for a follow-up.

The patient returned July 18 and the physician aspirated fluid from the knee, but did not test the fluid in any way, including for infection. Instead, he noted that the patient did not complain of any infection-related symptoms such as fevers, chills, malaise, or flu-like symptoms. The fluid, while slightly bloody, was noted to appear noninfectious. Thus, the physician concluded that the patient’s increased swelling and pain were due to the patient’s commencement of physical therapy.

The physician continued to treat the patient through Sept. 19, 2014. Throughout this time, the patient continued to experience effusion, ecchymosis, swelling, and increasing pain and loss of range of motion. On Oct. 30, the patient sought a second opinion at a different hospital. The ensuing aspiration confirmed an infection in the right knee. The patient underwent a two-stage revision of the previously implanted component. She first underwent removal of the component and placement of an antibiotic-impregnated cement spacer. She then underwent surgical revision to a total knee arthroplasty.

The patient filed suit against the physician and orthopedic and sports medicine facility for failure to diagnose, to treat, to remove fluid, and to consult with an infectious disease specialist. The defendants denied liability and contended the fluid had a noninfectious appearance, the plaintiff did not complain of any other symptoms suggestive of an infection, and the swelling was attributable to an increase in use. The jury found in favor of the defendants.

What this means to you: A critical point in the defendants’ successful malpractice defense arose from the blood test obtained when the patient sought a second opinion for her knee. After the care administered by the defendant physician, the patient underwent a blood test that revealed she did not suffer from an infection at the time the physician aspirated the fluid from her knee. When asked about the presence of an infection at trial, the defendant’s medical expert stated the patient “had a completely normal sedimentation rate and a normal C-reactive protein” and that if she was infected at the time of the arthroscopy on June 26, why were her C-reactive protein and her sed rate normal. “These are markers for infection, they were completely normal.” This evidence, when coupled with the fact that the fluid appeared noninfectious, strongly suggested that a test of the fluid for infection was unnecessary. Further, it makes clear the fact that the physician considered several possible causes for the swelling, pain, and other symptoms.

The determination that the defendants met their duty of care was made at least because of the physician’s continued and diligent postoperative treatment of the patient. Eleven months after the physician performed the medical femoral condyle resurfacing and implantation of an arthrosurface component, he saw the patient a second time to perform an additional arthroscopic surgery on her knee.

However, the physician also could have followed up with the patient within the relevant three-week period in which a different treatment option may have been available. Postoperative follow-ups are critical for ensuring the patient recovers quickly and without complications leading to lawsuits, especially when introducing foreign materials into the human body. The first follow-up appointment postsurgery was 11 months. This falls well beyond the three-week period on which the defense relied so heavily. That notwithstanding, the physician otherwise was diligent in his postoperative care regarding the additional arthroscopic surgery.

Considering the outcome of this case, it is wise for medical professionals and hospitals to set up systems for ensuring follow-up appointments are generated, especially after surgery. This can help mitigate any arising complications, such as infections.

It also is worth noting that the physician assistant always noted whether the patient used assistive devices to walk. This was one of many entries in the medical record that provided a basis to support the defense verdict. All medical professionals should be alert and pay particular attention to relevant symptoms related to the procedure. In cases involving prosthetics, use of antibiotic materials are advisable where practicable to avoid infections.

Another consideration is informed consent. Infection is a risk factor whenever an invasive procedure takes place. This includes the initial surgery, the arthroscopy, and each aspiration of fluid. In fact, the aspiration of the fluid within the knee joint to check for the presence of infection could have been when the infection occurred. Had the patient been fully aware that the development of a subsequent infection was not an unusual possibility, she may not have felt the need to commence litigation. Surgeons must be especially diligent about providing and documenting informed consent that covers common surgical risks before commencing with surgery. The most conservative and safe approach would have been to inform the patient that a collection of fluid surrounding an artificial implant may suggest the presence of infectious microorganisms, and advise her on what options for continued care are available. However, in this case, because the patient underwent physical therapy, a diagnosis of overuse rather than infection certainly was within the bounds of reason, given the circumstances.


Decided on Feb. 3, 2017, in the United States District Court, E.D. Missouri; case No. 15-CV-1333.