News: A patient underwent a knee replacement surgery, which resulted in an infection. However, despite subsequent visits to the hospital, the infection remained undiscovered for a substantial period. By the time the infection was discovered, it significantly worsened, and the patient required amputation.

The patient filed a lawsuit against the medical facility, alleging the delayed diagnosis caused the patient’s injuries and amputation. The defendant facility denied liability. An arbitrator awarded the patient more than $500,000.

Background: In April 2019, a 73-year-old man underwent a total knee replacement at a medical facility. One week later, the patient returned with symptoms of an infection on the same knee. A physician evaluated the patient and diagnosed cellulitis. The physician promptly discharged the patient. The next day, the patient’s condition dramatically worsened, prompting him to visit the ED of the same medical facility.

The patient was evaluated again and received the same diagnosis. Two days later, the patient underwent an irrigation and debridement surgery, at which point physicians changed the diagnosis from cellulitis to necrotizing fasciitis. The patient’s condition had continued to significantly deteriorate because of the incorrect diagnoses. Approximately one week after the irrigation and debridement, the patient required an above-the-knee amputation.

The patient filed an arbitration action against the hospital’s medical group, alleging the incorrect diagnosis of cellulitis and failure to diagnose necrotizing fasciitis caused the patient’s injuries, including the required amputation. The defendant medical group denied liability, and argued it was reasonable at the time to conclude the patient suffered from cellulitis. Furthermore, the defendant medical group alleged that even if the necrotizing infection had been diagnosed sooner, the severity of the infection would have necessitated the amputation; as a result, the delayed diagnosis did not cause more severe injuries.

Each side presented two expert physicians during the arbitration: one orthopedic surgery expert and one infectious disease expert. The patient and his experts testified his initial symptoms were consistent with a necrotizing infection, requiring further evaluation to rule out that possibility, rather than simply conclude it was cellulitis. According to the patient’s experts, if the standard of care was followed, the necrotizing fasciitis could have been diagnosed sooner and the patient would not have required amputation. However, based on the incorrect initial diagnosis, the fasciitis was allowed to grow and spread uncontrolled, which severely worsened the patient’s injuries.

The defendant and its experts presented contradictory evidence and testimony, arguing the healthcare provider’s initial diagnosis was reasonable at the time. According to the defendant’s experts, the diagnosis of necrotizing fasciitis was not required or possible until the patient underwent the irrigation and debridement surgery. Causation also is a critically important aspect of medical malpractice cases, and the defendant’s experts challenged the patient’s experts’ claims the delayed diagnosis directly contributed to the patient’s condition. The defendant’s experts argued that with this specific type of necrotizing infection, containment and control is difficult. Even if the infection had been diagnosed a few days earlier, the patient’s injuries would have been the same, they argued.

Before arbitration, the patient made an offer to the defendant to accept $275,000 to settle the arbitration; the defendant did not appear to make any offer to pay any sum for settlement. A practicing attorney served as the arbitrator. The arbitrator agreed with the patient’s claims experts’ assessment, awarding damages. The arbitrator awarded $32,500 for economic damages because of the patient’s expected future medical care, and $500,000 for non-economic damages for the patient’s pain and suffering.

What this means to you: This case presents interesting lessons in both substance of medical malpractice cases and in procedures for resolving allegations of medical malpractice. On the substance, the primary issues in this case revolved around the delayed diagnosis: whether the delay fell below the applicable standard of care, and whether the delay directly caused the patient’s injuries. A patient alleging medical malpractice has the burden of demonstrating both of these elements, among others.

If a defendant care provider can adequately rebut a single necessary element, then the patient will be unsuccessful. This presents multiple options for care providers to honestly evaluate the underlying events and strategize about which elements to challenge — and which elements to potentially concede. Attacking every single aspect of the patient’s case may stretch resources and credibility. By contrast, picking one or two of the patient’s weakest elements will enable a focused attack. Depending on the facts and circumstances present in each case, it might be worthwhile to concede less disputed elements. For example, when a complete failure to diagnose results in a patient’s death, and there are no other factors contributing to the patient’s death, a defendant care provider might look foolish by challenging the causation element and arguing an unknown cause.

A surgical site infection is a complex risk that should be reviewed with the patient before proceeding with surgery. Most postoperative infections are superficial and result in serous or purulent drainage from the incision line. Necrotizing fasciitis is a much more serious and extremely virulent infection that can result from any perforation in the skin. It is not common and not easily recognized because it can manifest itself like the more typical wound infections, such as cellulitis. There might be drainage or redness at the surgical site. It can develop just below the surface of the skin or deep within the tissue, depending on the organism causing the infection. What makes it different is the unrelenting pain it causes. Usually, patients will seek medical assistance continually because pain relief is difficult. A rapid return to the physician’s office or ED is a red flag for necrotizing fasciitis. Surgical intervention early is critical, along with IV antibiotics. Unfortunately, many physicians and surgeons look to the most common cause rather than stepping back and looking for reasons why it might be something else.

In this case, the defendant attempted to challenge both the claim that the diagnosis was improperly delayed, and the claim that the delayed diagnosis caused the injuries. While the defendant managed to secure multiple medical experts to support its contentions, the arguments were ultimately unsuccessful, as the arbitrator did not agree with the defendant’s experts. Instead, the arbitrator concluded that under the applicable standard of care, a reasonable physician in the same or similar circumstances would have performed further testing and evaluation earlier to determine the precise nature of the infection. Thus, the failure to do so in this case constituted malpractice, and that delayed diagnosis enabled the infection to worsen and significantly harm the patient.

Another interesting lesson from this case involves the method for this dispute resolution. This case proceeded through an arbitration, an alternative dispute resolution process that forgoes the public forum of a civil court. Arbitration is a creature of contract, and it is likely the patient signed an agreement as part of his receipt of medical services whereby he agreed to arbitrate any issues. There are advantages and disadvantages to arbitration vs. standard litigation. Some advantages can include a more expeditious process, greater privacy compared to public court filings (although not complete privacy as certain arbitration cases are newsworthy and become public), and the absence of jurors, which can prevent runaway adverse verdicts.

At the same time, arbitration is not without its drawbacks, as arbitration itself is a more expensive forum since the parties have to pay for one or more individuals to serve as arbitrator. Typically, they are practicing attorneys or retired judges who charge substantial hourly rates. Arbitration’s attempt to streamline proceeds also might limit the parties’ efforts to secure information from third parties through discovery, including limiting the number of depositions. Care providers should consult risk managers and counsel to consider the multitude of advantages and disadvantages, and whether requiring patients to resolve disputes through arbitration is best for each care provider.


  • Private arbitration, decided April 19, 2021.