Physician Legal Review & Commentary Supplement
Numbness and difficulty after orthopedic surgery result in more than $1 million verdict for the plaintiff
By Jonathan D. Rubin, Esq., Partner, Kaufman Borgeest & Ryan, New York, NY
Ericka Fang, Esq., RN, MPH, Associate, Kaufman Borgeest & Ryan, Valhalla, NY
Bruce Cohn, JD, MPH, Vice President, Risk Management and Legal Affairs, Winthrop-University Hospital, Mineola, NY
News: The plaintiff underwent an anterior lumbar interbody fusion in 2002 and suffered pain, numbness, and difficulty walking as a result of the procedure. The plaintiff brought this action for medical malpractice against the orthopedic surgeon. A jury rendered a verdict in favor of the plaintiff in the amount of $1.1 million.
Background: The plaintiff developed a back problem in 2001. He consulted with an orthopedic surgeon specializing in spine surgery, who initially recommended conservative therapies. The conservative therapies were unsuccessful. Diagnostic testing was conducted and revealed the degeneration of discs and cartilage in the plaintiff’s lower back. The orthopedic surgeon recommended the plaintiff undergo an anterior lumbar interbody fusion.
The plaintiff agreed to the procedure, and it was performed at a medical center in April 2002 by the orthopedic surgeon and two other vascular surgeons. There were no complications with the spinal fusion part of the surgery, but complications arose with respect to accessing the plaintiff’s spine. As such, vascular injuries occurred causing substantial bleeding and requiring conversion from a laparoscopic, minimally invasive approach to a more intrusive open approach. After the vascular injuries arose, the orthopedic surgeon left the surgery table. The vascular surgeon was called in to make the necessary vascular repairs. Once the vascular repairs were complete and the bleeding controlled, the orthopedic surgeon returned to complete the surgery.
Following the surgery, the plaintiff was taken to the post-anesthesia care unit (PACU) at the medical center, where he was monitored and given intravenous fluid. He was then transferred to ICU for monitoring. Later that evening, the orthopedic surgeon was contacted by a hospital nurse due to concerns over the plaintiff’s symptoms. The orthopedic surgeon assessed the plaintiff and saw no symptoms of complications (i.e. compartment syndrome).
However, the following morning, the orthopedic surgeon suspected that the plaintiff suffered from compartment syndrome in his left calf area. He informed the vascular surgeon that morning. Surgery to relieve the pressure in his legs was not conducted until about 2 p.m., when the compartment syndrome had reached an advanced state. The plaintiff suffered the permanent loss of the peroneal nerve in his left leg. As a result, the plaintiff alleges that he now experiences pain, numbness, and difficulty walking.
At trial, the plaintiff argued that the orthopedic surgeon advised him that he would supervise the surgical team performing the surgery. The orthopedic surgeon disputed this point and denied any general responsibility for the plaintiff’s condition as the admitting physician. The orthopedic surgeon further testified that he was not qualified to treat the compartment syndrome and that vascular issues were the vascular surgeon’s responsibility. He acknowledged that the vascular surgeon did not act quickly upon being informed of the suspected compartment syndrome, but he denied any responsibility for the delay. The jury found for the plaintiff and awarded damages in the amount of $1.1 million.
What this means to you: Compartment syndrome is not infrequently seen as a basis for malpractice liability. The issue in these cases usually is failing to diagnose timely, often because the condition is thought to be less serious or the patient does not present with classic signs and symptoms of the disease. This case report compounds the delay with confusion over who was responsible for what, which further delayed the diagnosis.
Compartment syndrome is particularly dangerous medically and legally because of the declining likelihood of a good result as time goes by. The medical nature of this is self-evident and might cause the judge or jury to be punitive. The testimony of the plaintiff’s experts follows a predictable pattern. If only the doctor had diagnosed or at least suspected compartment syndrome a few hours earlier, the patient would have been timely operated on and everything would be fine.
This case also shows the problem of determining who is the captain of the ship or the primary practitioner responsible, particularly when many surgical specialties are involved. The multiple surgeon conundrum is compounded by the finger pointing that invariably results as each doctor tried to exculpate themselves by blaming the others.
In this case, there was an apparent vascular injury. The orthopedic surgeon could not say for sure whether he or the vascular surgery caused this injury. What is clear is that the orthopedic surgeon left the OR while the repairs were going on. This is a problem medical-legally. Even if there was nothing for the orthopedic surgeon to do in regard to the vascular repair, his leaving after a complication was discovered will not sit well with the finder of facts. The patient underwent a nine-hour surgery and appeared well in the postoperative care unit, then transferred to the surgical ICU. Five hours after the surgery, the nurse called the orthopedic surgeon due to concerns about the patient’s symptoms. This call is the first opportunity to make the diagnosis. It appears from the case report that the orthopedic surgeon reported being familiar with the syndrome, but a significant issue would be what is in the record.
Often in malpractice cases, we are searching retrospectively what the doctor was thinking about. Did he consider compartment syndrome and, if so, does the record reflect his differential diagnosis? Reading the chart at trial, if there is a particularly worrisome cause of a patient’s symptoms, there should be clear evidence of its consideration and if discounted, what facts were used to discount the possibility? The orthopedic surgeon did suspect compartment syndrome the following morning at 6:30 a.m. There is some dispute over the contents of a call to the vascular surgeon by the orthopedic surgeon that morning and also evidence that a nurse called the vascular surgeon at about 6:30 a.m. At this point, there is clear consideration to the syndrome. Again, we have to look at the facts of the case from the perspective of a lay juror, not a clinician. The physician was considering a serious condition, which had the potential to cause significant harm, and he left the hospital without doing anything to confirm the diagnosis.
The orthopedic surgeon then performs elective surgery at another hospital, while the resolution of the patient’s problem is still uncertain, which is another "red flag" to the jury. The vascular surgeon finally performed surgery to treat the problem, some seven hours after it was first suspected. There’s no surprise that there was permanent damage to the patient’s peroneal nerve.
Amazingly, the attending physician attempted to deny responsibility for the patient’s general condition as the admitting physician. He also used as a defense that his index of suspicion was not high for compartment syndrome because he was not present for the entire initial operation. This is a no-win argument. The orthopedic surgeon was the physician mainly responsible for the patient. If he could not perform the surgery to decrease the compartment pressures, he needed to ensure that someone who could was called and available. What this means to you is that the primary surgeon must have a high index of suspicion for dangerous conditions. Once the suspicion is there, the primary surgeon must rule out the complication or ensure appropriate additional treatment.
Having appropriately raised the alarm on compartment syndrome, the doctor should not have left the hospital until the condition was ruled out, further testing was being done, or definitive treatment by a specific practitioner was instituted.
Reference:
New Hampshire Supreme Court, 965 A.2d 1040 (2009)
Diagnosis of pneumonia instead of CHF results in plaintiff’s verdict at trial
By Jonathan D. Rubin, Esq., Partner, Kaufman Borgeest & Ryan, New York, NY
Ericka Fang, RN, MPH, JD, Associate, Kaufman Borgeest & Ryan, Valhalla, NY
Bruce Cohn, JD, MPH, Vice President, Risk Management and Legal Affairs, Winthrop-University Hospital, Mineola, NY
News: The plaintiff’s decedent suffered from congestive heart failure (CHF), which contributed to her subsequent stroke and death. The plaintiff brought this action for medical malpractice against numerous physicians and the hospital as the administrator of his wife’s estate. The plaintiff alleged that the defendants negligently delayed in the diagnosis of the decedent’s congestive heart failure and further alleged that the delay caused or contributed to her subsequent stroke and death. The jury found that the decedent’s death was caused by the negligence of the defendants and awarded plaintiff damages in the amount of $667,000.
Background: On Feb. 9, 2008, the plaintiff’s decedent gave birth to twins at a hospital in North Carolina. Two days later, her obstetrician ordered an abdominal X-ray that indicated she could be suffering from pneumonia. The plaintiff’s decedent was treated with antibiotics and discharged on Feb. 13. On Feb. 15, the plaintiff’s decedent experienced shortness of breath and went to the office of her primary care physician for treatment. He referred her to the emergency department for further evaluation. X-rays were conducted at the hospital, and she was diagnosed with pneumonia, given a different class of antibiotics, and discharged home the same day.
On Feb. 22, the plaintiff’s decedent returned to the emergency department at the same hospital with complaints of shortness of breath. An emergency physician’s assistant at the defendant hospital briefly examined her and then ordered a flu swab, a strep test, and a chest X-ray. The flu swab and strep test were negative. The physician’s assistant consulted with a physician at the defendant hospital about the chest X-ray. Both agreed that the plaintiff’s decedent suffered from pneumonia. She received prescriptions for antibiotics that provided broader coverage that the one she had previously taken and was discharged home with instructions to return to the emergency room if her symptoms continued or worsened.
Her Feb. 22 chest X-ray was interpreted on Feb. 25, because there were no radiologists on duty at the defendant hospital over the weekend. When a radiologist interpreted the chest X-ray, his diagnosis was different from that of the emergency department physician and ED physician assistant. The radiologist advised that she was suffering from worsening congestive heart failure. On Feb. 27, an emergency department physician instructed one of the emergency department nurses to contact the plaintiff’s decedent with a warning that she should see her primary care physician as soon as possible. The nurse called and left a voicemail message for the plaintiff’s decedent that day and spoke to the plaintiff on Feb. 28, 2008. The plaintiff was unable to schedule a visit with a cardiologist or internist until mid-March, and the emergency department nurse recommended returning to the ED. The plaintiff’s decedent did not come to the emergency department that day.
On March 1, the plaintiff’s decedent returned to the defendant hospital and was admitted. On March 2, 2008, she was transferred to another hospital in North Carolina. On March 4, the plaintiff’s decedent suffered an embolus to her kidney and was started on coagulation therapy. On March 7, she suffered a stroke. Thereafter, she continued to decline until her death on March 23. According to her death certificate, her death was a result of complications from her stroke.
Prior to trial, the plaintiff settled this matter with the defendant hospital. The action proceeded to trial with the emergency department physician assistant, radiologist, emergency department physician and physician practice groups as defendants.
At trial, the plaintiff argued that his wife’s death was caused by the negligence of the defendants. The plaintiff further alleged that the defendants negligently delayed the diagnosis of his wife’s congestive heart failure and that the delay caused or contributed to her subsequent stroke and death. The jury returned a verdict for the plaintiff against the physician group and the ED physician assistant in the amount of $667,000. The jury also found that the decedent’s death was not caused by the negligence of the radiologist or the ED physician. The ED physician assistant and the physician practice group appealed the decision. Upon appeal, the court ruled that the defendants were entitled to a new trial. The new trial has not been held.
What this means to you: Sometimes you get multiple chances to jump back off the malpractice ledge, and sometimes multiple chances are just not enough. The plaintiff’s decedent delivered twins. A X-ray taken by her obstetrician caused the doctor to suspect pneumonia. He gave her antibiotics, and she was discharged. Two days later, she has shortness of breath and her primary care physician sends her to the ED, and there are more antibiotics. Seven days after that time, she went back to the same emergency department, where a physician assistant orders testing including an X-ray, which is not interpreted for three more days. She eventually is called and told to consult her primary care physician or an internist. By the time she does get back, her situation goes bad quickly. She suffers multiple medical complications and a steady decline to her death, some six weeks after the birth of her twins.
Clearly the damage aspect of this case is awful; a young mother of twins who expires soon after the birth. The liability aspects of this case when viewed from the retrospective would seem almost incredible if we had not seen similar situations in the past. The providers went into a virtual multiplex and went into the wrong theater. In this case they also stayed in the wrong theater.
The obstetrician made a presumptive diagnosis of pneumonia and gave antibiotics. Clearly the symptoms did not get better. In spite of this fact, the first emergency department visit resulted in the same diagnosis and more antibiotics. The case report indicates that X-rays were taken at the first emergency department visit. It would be interesting to review those films with the knowledge of what ultimately occurred. The classic danger here is accepting the prior diagnosis. Most likely, when the patient presented for the first emergency department visit, she told the physician that she had been diagnosed with pneumonia previously. This diagnosis might have colored the ED physician’s evaluation. The patient was assumed to have pneumonia, which did not respond to the first set of antibiotics, and the antibiotics were changed. The assumption by that physician might even have affected the interpretation of the X-rays as showing pneumonia. The patient might have been better off coming in off the street with no prior diagnosis.
A third medical encounter ensues on the 22nd when the patient again presents to the emergency department. The physician assistant does a full work-up with a chest X-ray. After consulting with a physician, the physician assistant again diagnoses pneumonia. What follows is a delay in a definitive reading by a radiologist, followed by a delay in getting the patient to definitive care, which contributes to a bad outcome.
There are multiple issues here. If the patient had pneumonia and did not improve on different antibiotics, the diagnosis should have been questioned. Why three sets of providers came up with the same incorrect diagnosis will weigh heavily on the minds of the jury. Jury instructions routinely tell jurors to use their common sense, and the continued adherence to a diagnosis in the face of no improvement clearly will violate this rule.
The delay in a definitive read is also a problem. It is common for different hospitals to have different levels of staffing, with some having weekend radiologists and some not. This situation is fine as long as the emergency department attending who is trained to read X-rays comes up with the same opinion as the subsequent review by the radiologist. This situation is one of those in which everything is fine if you are right but not if you are wrong.
The delay in getting the patient back is also an issue. Once having identified a potentially life-threatening condition, the patient should have been told to return to the emergency department immediately. The rather vague advice of making an appointment to see a doctor in the face of worsening congestive heart failure simply is not enough. If the patient had been directed to return to the emergency department, a consultation with a cardiologist could have been obtained quickly. It might not have changed the outcome, as the patient came back to the emergency department anyway after trying to make an appointment, but it would have made the case more defensible.
One item that is surprising is the failure of the verdict to find liability on the part of the ED physician but hitting the physician assistant. Considering that the physician assistant consulted the ED physician, the ED doctor generally would be liable for the actions of the physician assistant as well.
The diagnosis should have been questioned. The failure of the hospital to have radiological over-reads in a more timely fashion created delay, which resulted in greater exposure. What this means to you is that accepting another practitioner’s diagnosis, especially in the face of evidence that it might be wrong, will subject you to a negative verdict.
Reference
Washington Supreme Court, 285 P.3d 873 (2012).
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