News: A 15-year-old patient underwent a coccygectomy and was not closely monitored. The physician missed an infection that caused the patient severe, permanent injuries. According to the patient, the physician was aware of the risks but failed to investigate the infection.

The patient filed a medical malpractice suit and was awarded $2.75 million in damages. The defendants appealed, arguing the evidence was insufficient to support the verdict, and the patient’s expert should not have been permitted to testify by video. However, the appellate court found the evidence sufficient, and affirmed the award.

Background: A 15-year-old patient underwent a coccygectomy, or tailbone surgery, which was performed by an experienced spinal surgeon. Following surgery, the wound seemed to have healed well; however, the patient started to develop symptoms consistent with a postoperative infection, including intermittent draining and pain, which worsened over time. Two months after the surgery, the pain was persistent and increasingly severe. Additionally, the incision site now presented hypergranulation, red tissue, and extreme tenderness. The patient attended two follow-up visits with the surgeon, who failed to identify the signs of an infection. While the surgeon took a culture from the patient that tested negative for infection, this was not sufficiently reliable to rule out infection, as false-negatives occur.

The patient alleged the surgeon should have taken further steps because of the new wound draining and the extreme tenderness. A few days after the first follow-up visit with the surgeon, the patient saw his primary care physician, who suspected an abscess. An MRI was ordered and reveled a large fluid collection, consistent with an abscess. A radiologist documented the MRI results.

Although these MRI results were available before the patient’s second follow-up visit, the surgeon failed to review the results. The results were not necessarily conclusive to demonstrate an infection, but the presence of fluid was another symptom of a potential infection, which should have prompted the surgeon to investigate further.

At trial, the defendant care providers claimed there was no record of the patient experiencing draining after the surgery. However, the patient’s medical records revealed intermittent draining had been documented two to four weeks after the surgery. These findings were consistent with the patient’s statements and indicated the patient reported drainage before he was diagnosed with an abscess or had been made aware of the significance of an abscess.

Because of the infection, the patient suffered permanent nerve and tissue damage, permanent loss of function, and severe pain. The patient’s neurology expert further testified the patient would live a poor quality of life and would be required to modify his life to cope with the significant pain.

The patient filed a medical malpractice action against the surgeon and hospital, alleging both were negligent for failing to monitor the surgery and failing to timely diagnose and treat the infection. The defendants denied liability. A jury found in favor of the plaintiff and awarded him $2.75 million: $1.5 million for pain and suffering, and $1.25 million for lost earning capacity over a 45-year expected work life. The defendants appealed, but the appellate court affirmed the award.

What this means to you: This case demonstrates the need to carefully monitor patients during the relevant times, particularly during and after surgery, and to investigate abnormal conditions. The primary basis for the medical malpractice liability in this case was the surgeon’s failure to diagnose and timely treat the infection, which escalated and caused severe, irreparable damage and pain to the patient.

As with many medical malpractice cases, this one turned into a battle of the experts, where the patient’s experts and the care provider’s experts offer conflicting opinions — and the jury is required to evaluate those experts and decide which opinions to believe. Under such circumstances, it is common for parties to try to challenge not only the substance of the opposing party’s expert’s opinions, but also the procedure by which the expert offers his or her opinions.

In this case, the care providers argued the court should not have permitted the patient’s expert to testify by video after he was needed longer than expected. The plaintiff’s attorney indicated its expert was busy and provided a limited time during which he could testify. The expert remained available for the entire time during the pre-arranged period and answered all questions presented. The defendants did not raise any issue about insufficient time to cross-examine or any other relevant fact. Only the defendants’ attorney could have known how long their own cross-examination would take. Nevertheless, the defendants argued that presenting the cross-examination via recording was detrimental to their case because it lacked the same effect as an in-person examination, and it hampered the jury’s ability to assess the expert.

The trial and appellate courts rejected this argument because the jury was instructed to treat the recording as a live, in-court testimony. Almost a full hour of the recording was played for the jury, giving jurors sufficient time to assess the expert. The courts found the video presentation was not prejudicial. As the current health crisis has caused significant disruption to in-person activity, in courts and otherwise, it is instructive that this court recognized the propriety of permitting video testimony of a medical expert. Such testimony by remote means is likely to benefit the court, the parties in litigation, and the experts themselves, as it reduces costs and time for travel, and simplifies scheduling and availability issues that may otherwise arise.

On appeal, the defendants also argued the patient’s attorney improperly attempted to introduce a new theory of liability during trial. However, the courts disagreed and found the activity was proper impeachment of the defendants’ witness through prior inconsistent statements by citing data the witness published in clinical studies that directly contradicted his testimony. In particular, the witness testified only 15-20% of his patients developed wound problems, including infections, after surgery. However, studies he authored placed that same figure at 28-36%, establishing the complication rate for his patients was toward the higher end.

The court concluded this was a proper manner for the patient’s attorney to challenge the defendant’s expert. Ultimately, the patient’s expert and undermining of the defendant’s expert was more convincing to the jury and resulted in a verdict against the care providers. If named in a medical malpractice action, care providers should work closely with counsel in identifying and retaining qualified experts, and in determining the best methods for challenging an opposing party’s experts. Such efforts are likely to be valuable in presenting a successful defense.


  • Decided on April 23, 2020, in the Commonwealth of Massachusetts Appellate Court, Case Number 18-P-1589.