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

News: An elderly man presented to an orthopedic surgeon to undergo a total replacement of his right knee. However, the surgeon failed to identify circulation problems that previously resulted in a stent insertion. This failure, combined with inadequate postoperative care, resulted in circulation problems requiring an above-the-knee amputation.

As a result of the amputation, the patient’s life dramatically changed. He was unable to work, and his wife of more than 20 years became his full-time caregiver. The patient and his wife sued the surgeon and his medical practices, alleging malpractice and seeking damages for pain and suffering and loss of consortium. After a seven-day trial and one day of deliberations, the jury awarded the patient and his wife $8.35 million in damages.

Background: An 82-year-old man suffered from arthritis in his right knee, requiring several years of physical therapy and injections. Despite the patient’s age and condition, he lived an active and full life, was a former professional athlete, and worked full-time as a security guard. In 2011, the patient underwent surgical insertion of a stent in the right leg.

In 2013, the patient presented to a surgeon for a total replacement of the afflicted right knee. However, the surgeon failed to analyze the patient’s medical history, including the stent. Due to blood circulation complications and a crumbling femoral bone, the knee replacement was not successfully completed; instead, the surgeon used a temporary bone graft and then placed the leg in a whole-leg cast. During the procedure, the surgeon used a tourniquet for two hours at 350 mm and for another two hours and 10 minutes at 400 mm, which the patient later alleged was excessive in pressure and duration.

During postoperative visits, the surgeon suspected a venous clot in the right calf. The patient presented to a hospital shortly thereafter based on the surgeon’s advice; however, according to the patient and multiple eyewitnesses, the surgeon did not even touch the patient’s leg during several follow-up visits. The surgeon failed to document any ischemic changes to the leg in notes at two postoperative visits, while other providers noted a blackened, insensate, and partially mummified foot as well as other signs of long-existing ischemic injury. Based upon the severity of the patient’s condition, the leg was amputated by a different surgeon above the knee. A pathologist noted that the leg had extensive gangrenous changes, including a hard, black, reddish-black and mummified heel and partial mummification of two toes.

The patient and his wife filed suit against the surgeon and his medical practices, alleging that the physician failed to meet the applicable standard of care, harming the patient and causing his wife loss of consortium. The patient claimed that, at the time of the surgery, he had a number of indications of potential problems that would complicate the surgery due to prior arterial flow issues in his legs. The patient alleged that the surgeon never documented any examination of the adequacy of the arterial flow in the right leg and was not aware of the components of a vascular examination of the leg. The surgeon apparently relied on the warmth of the leg, which is an improper indicator of good arterial flow.

According to the patient, the standard of care would have been to seek approval from a vascular surgeon, who would have required various intraoperative measures to avoid harming the flow to the leg and would have assisted with postoperative surgical clearance. While the surgeon did consult and receive clearance from a cardiologist, he did not seek the approval of a vascular surgeon.

The defendant surgeon claimed he was not negligent and testified that he asked the patient to return to a vascular surgeon, but that the patient failed to do so. The surgeon further argued that the patient recognized the high-risk nature of the surgery, that this was sufficiently discussed with the patient, and the patient willingly chose to proceed.

After one day of deliberations, the jury awarded the plaintiff $8.35 million: $6.75 million for the patient’s pain and suffering, and $1.6 million for the wife’s loss of consortium. The defendants sought a new trial, but the court denied the request. The court noted that the surgeon’s violations of the standard of care were egregious and caused a significant effect on the patient, changing an outgoing, active 82-year-old man to a reclusive, solitary man who rarely left his own bedroom. The court further commented on the wife’s conversion to a full-time caretaker who was unable to enjoy the marital relationship she was entitled to, and who was independently unable to live her own life to a meaningful extent.

What this means to you: This case illustrates the critical need for attention to a patient’s details at all stages of treatment and care, not simply during a procedure. The surgeon here failed to look beyond the procedure: He did not adequately consider the patient’s history of circulation problems in the right leg and did not adequately monitor and evaluate the patient during postoperative care when the leg continued to deteriorate. Patient evaluation and care is important at all times, and a physician who is focused solely on a surgical procedure or other singular incident may fall below the applicable standard of care if surgeons similarly situated would not do so.

Every patient has a unique medical history which care providers must understand and consider prior to engaging in a course of treatment for the patient. In this case, although the patient lived an active life, he had a history of circulation problems in his right leg and required a stent. At the time of the surgery, the patient reportedly had other indications that complications were likely. During trial, the patient alleged that the surgeon did not understand the components of a vascular examination of the leg and relied upon an improper indicator — leg warmth — during his evaluation.

In this situation, the surgeon should have exercised additional precautions by closely examining the patient and by seeking specialized assistance beyond his own expertise. As both parties discussed during trial, a vascular surgeon’s review, approval, and assistance would have prevented a dangerous surgery or facilitated the surgery’s success. The surgeon here argued that he asked the patient to return to a vascular surgeon, but the patient refused. But when dire consequences may result from the patient’s own refusal, a more cautious course of action dictates that the physician may insist that the consulting physician be brought in, if a reasonable physician would do so under the same or similar circumstances.

Alternatively, if a patient is adamant and refuses no matter what, thoroughly documenting the patient’s rejection is important to protect from future malpractice claims where patients may claim that they were not fully informed or were not offered the option.

As with preoperative considerations, postoperative attention and treatment remains essential. Physicians must ensure that their patients are recovering in a manner consistent with what would be standard under the circumstances. When a patient undergoes a particularly difficult procedure, or complications are encountered along the way, additional postoperative attention and care may be warranted.

In this case, critical complications arose that prevented the surgery from proceeding as planned, and the surgeon reported crumbling of the femoral bone. A reasonable physician under the same or similar circumstances should have noted that as a result of these issues, the patient was at higher risk for severe injury to the leg from insufficient bloodflow.

However, this surgeon failed to provide the standard of care necessary by failing to correctly evaluate the patient’s leg and by failing to document restricted blood flow and resulting injury. By the time the patient received proper attention, the patient’s leg was injured beyond recovery. This could have been prevented if the surgeon met the standard of care and addressed the patient’s needs as they arose.

Physicians have the ability and the right to refuse to continue to treat patients who will not follow their recommendations and instructions. It is prudent to do so if the patient’s refusal might affect the outcome of a treatment or procedure. It is imperative that physicians recognize potential risks to patients, but they also must recognize risks that can arise when patients refuse to participate in their medical plan of care.

It is incumbent upon the physician to assure that the patient fully understands the reasons for these recommendations and that this understanding is documented in the patient’s medical record. If the need arises to refuse care, it is the responsibility of the physician to assure continuity by cooperating with the patient to find an alternative provider and handing off care formally to the new physician. Often, a patient may rethink his or her decision during this process and acquiesce to the primary physician’s requests.

A final lesson from this case is that while a patient’s age is often connected with the amount of a medical malpractice award, it is not always the case that an older patient recovers less. When, as in this case, the injuries are devastating and life-changing, an elderly patient may recover significant sums, just as a younger patient would. This 82-year-old man and his wife had their life permanently changed as a result of the surgeon’s failure to meet the standard of care, and the verdict of $8.35 million reflected that. Patients of all ages are entitled to care within the applicable standard, and a care provider’s failure to provide that subjects him or her to medical malpractice.


Decided on June 15, 2017, in the Superior Court of the District of Columbia; Case Number 2015 CA 008980.