case reviewA Review of Case Studies for MLMIC-Insured Physicians & Facilities

C A S E S T U D Y # 1

A Knee Replacement Leads to Amputation…Jerry Glum, Vice President, ClaimsMedical Liability Mutual Insurance Company

The plaintiff, a 59-year-old obese woman who was a candidate for a

total knee replacement due to degenera-tive disease of her left knee, was admitted by an orthopedic surgeon to a commu-nity hospital. Although the surgeon had some difficulty performing the procedure, it proceeded essentially uneventfully. However, on the first post-operative day, the plaintiff exhibited footdrop and com-plained of knee and calf pain despite using a patient-controlled analgesia. The nurse’s notes documented that she had posi-tive pedal pulses. There were no signs of cyanosis nor was her foot cold.

The following day, the physician’s assistant (PA) who saw her failed to record the temperature or appearance of her foot, or the presence or absence of pulses. However, the PA did document that the patient was unable to dorsiflex her foot.

On post-operative day three, the patient complained of pain in the bot-tom of her foot, as well as numbness and tingling. The footdrop had persisted and she was unable to dorsiflex or plan-tarflex her foot. The practitioners from the orthopedic service who saw her con-cluded that her pain was due to muscu-loskeletal strain, secondary to the surgery. The nurse’s notes continued to indicate palpable pulses in her foot. The patient was then transferred on post-operative

day four to a nursing home for rehabili-tation.

Four days later, the patient was brought by ambulance to the emergency department of a tertiary hospital. Her foot was cool, cyanotic, and anesthetic, with no palpable pulses. A Doppler revealed that there was no blood flow below the popliteal artery. The vascular service was called, and they suspected she had compartment syndrome. The patient was taken to surgery for a lateral fasciotomy. An intraoperative arteriogram demonstrated an abrupt cutoff of the popliteal artery with some reconstitution of the tibial arteries. When the popliteal artery was opened, a fresh thrombus was removed. The patient was subsequently returned to the OR for an additional fas-ciotomy. The remainder of her post-oper-ative course was stormy, with multiple débridements and skin grafts performed. Although her limb was initially salvaged, she later fell and injured the limb, neces-sitating an above-the-knee amputation.

The plaintiff commenced a lawsuit based upon the theory that there was a series of undiagnosed post-operative symptoms and incidents that eventually led to an amputation. She claimed that the blood clot was due to a tear of the intima of the popliteal artery. She further alleged that, as blood flowed through the artery, exacerbating the intimal tear, the

blood collected and clotted, blocking the blood flow in the artery to the foot. The patient’s pedal pulse became weaker as less blood flowed through the popliteal artery. As the clot expanded, the pain in her foot and calf got progressively worse. When the peroneal nerve became affected, she devel-oped numbness, tingling, footdrop, and was unable to dorsiflex. Because her tibial nerve also was affected, she was unable to plantar flex as well. She claimed that her post-operative signs and symptoms were clearly suggestive of a blood clot.

The plaintiff alleged that the ortho-pedic providers had deviated from the standard of care by failing to order a Doppler study of the popliteal artery, or performing any other testing to rule out a blood clot, before she was discharged. The plaintiff also claimed that a vascular surgeon should have been consulted. Finally, the plaintiff alleged that the orthopedic surgeon failed to see and examine her during her post-operative course. Instead, he relied on the PA and nurse practitioner for knowledge of the patient’s condition. This seemed to indicate a lack of communication between the surgeon and other pro-viders, in addition to their failure to adequately diagnose and document the patient’s condition, and an apparent lack of attentiveness by the surgeon to the patient after surgery.

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The defense argued that the patient had experienced an intimal tear of the artery from within, resulting in a flap of intimal tissue impeding the blood flow to the lower leg. This caused both ischemia and compartment syn-drome. The defense further argued that, pro-spectively, there was no indication of a vascular injury to her left leg. Thus, there was no indica-tion for an order for either vascular studies or a vascular consultation prior to her discharge. The defense claimed that the signs and symptoms observed by the PA, nurse practitioner, and the nursing staff were consistent with nerve palsy from a pre-existing flexion contracture, varus deformity, and full extension of the knee during surgery. Allegedly, when these tissues stretched, she developed the peroneal nerve palsy. The defense further argued that footdrop and lack of dorsiflexion is fully consistent with a peroneal nerve palsy. In contrast, if a popliteal artery blood clot had been present at the level of her knee, first the tibial nerve and then the peroneal nerve would have been affected. This is because the peroneal nerve is not directly/fully perfused by the popliteal artery. To support the defense’s argument, the nurse had documented that the patient’s foot had positive pulses, no loss of warmth, no changes in color, no loss of capil-lary refill, and no progression of pain.

This lawsuit was tried twice. The first trial resulted in a hung jury. This jury voted 4 to 2 in favor of the plaintiff. The jury commented that despite the documentation in the nurse’s notes of reasonable nursing care and attention, in contrast, the orthopedic surgeon was not at all attentive to this patient. Further, although the surgeon claimed he did not document his one post-operative visit to her, the plaintiff tes-tified he had not come to see her at all during her hospital admission.

The second jury rendered a verdict in favor of the orthopedic surgeon, despite his failure to see the patient and the lack of documentation of the absence of evidence of possible vascular compromise. However, despite the defense verdict, this case was arduous to defend because of the minimal documentation by all of the orthopedic pro-viders and the surgeon’s lack of attention dur-ing the post-operative period.

A Legal & Risk Management PerspectiveDonnaline Richman, Esq., Fager Amsler & Keller, LLPCounsel to Medical Liability Mutual Insurance Company

This case, unfortunately, rests primarily upon the lack of adequate documentation by all

providers, including the failure to document any communication between the advanced practitio-ners and the operating surgeon. Although it can be appropriate to delegate routine post-operative care to advanced practitioners, this patient was clearly developing symptoms of a very serious complication. It would have been in the patient’s best interests if the orthopedist had personally assessed the patient.

One of the biggest complaints by patients in both physician offices and the hospital is the lack of time spent with the patient by the doctor and/or the patient’s inability to see the doctor rather than an advanced practitioner. This seems to be true, across many specialities, because of the need to see more patients in a shorter period of time due to both patient load and reimbursement issues. Whether either of those reasons caused the orthopedist to be inattentive is unclear, but it is a theory a plaintiff could raise. Although the surgeon claimed that he did visit her once dur-ing the post-operative period, because he failed to document this visit, his testimony as to that fact would be far less credible than that of the patient. The plaintiff can argue that the surgeon sees many patients on a daily basis so his memory of that visit would be suspect. However, because the patient was concerned about her increased symptoms, she would have a much more believable recollection of whether she had been visited by the surgeon.

The defendants were fortunate to win the case. However, it would have been much easier to defend if the surgeon and his employed providers had better documentation of regular communication about post-operative patients in the hospital and had properly documented their care and assessments in the medical record, rather than primarily relying on the nursing documentation.

Spring 2014

Case Review is published under the auspices of MLMIC’s Patient Safety & Education Committee, Donald J. Pinals, M.D., Chairperson.

Editorial Staff

John Scott, Editor

Frances Ciardullo, Esq.

Jerry Glum

Donnaline Richman, Esq.

Daniela Stallone

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Case #1 continued

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This case demonstrates how, despite evaluations by physicians in several

specialties, there can still be delays in diag-noses. In this case, a lawsuit was brought by an infant plaintiff and his parents for failure to diagnose left testicular torsion.

The 14-year-old plaintiff presented to the emergency room at 7:08 pm on a Friday night for evaluation of left testicular pain. The plaintiff was seen and evaluated by the emergency room physician. The chief complaint obtained during triage was testicular scrotal pain on the left side. The history taken by the emergency room physician documented that the plaintiff developed sudden intense pain to his left testicle around 6:30 pm that evening. On examination, the patient exhibited moder-ate distress. The external examination doc-umented normal male pubic hair pattern, with both cords and testes within normal limits and without lesions. No further tes-ticular examination was documented.

The emergency room doctor ordered a transscrotal ultrasound, which was prelimi-narily read by a radiologist. The interpreta-tion was suggestive of left epididymitis. This radiologist also documented on the report that the study showed bilateral flow. The next day, an “official” reading of this ultrasound was performed by a second radiologist, who confirmed the diagnosis of left epididymitis. A urinalysis obtained in the emergency department was negative for blood, nitrates, and leukocyte esterase. The plaintiff was treated for pain with Percocet and was discharged on Bactrim and Vicodin. His parents were advised to obtain follow-up care with a urologist the follow-ing morning. They were given the name of a urologist. The patient was advised to return promptly to the emergency room if his pain became worse, he developed a fever, or he had any other such concerns.

According to the plaintiff ’s father’s

deposition, the family did contact the office of the on-call urologist the next day for follow-up care. However, this urologist did not treat pediatric patients and recom-mended that they seek a pediatric urologist. The plaintiff ’s father made an appointment with a pediatric urologist, but was unable to get an appointment for six days. By the time the plaintiff was seen by the pediatric urologist, he had continuing complaints of left testicular pain. A repeat scrotal ultra-sound was performed which showed evi-dence of left testicular torsion. The urolo-gist immediately admitted the plaintiff to the hospital and performed an exploration of the left hemiscrotum and left orchiecto-my. Subsequently, the plaintiff underwent a right trans-scrotal orchiopexy, an excision of the right appendix testicle, and, one month later, an appendix epididymitis.

During his deposition, the emergency room physician testified that he had diag-nosed epididymitis solely upon the ultra-sound interpreted by the radiologist. The MLMIC emergency medicine experts who reviewed the case were concerned that the emergency room physician had failed to adequately document a testicular examina-tion and that this lack of documentation raised questions of whether a physical examination of the patient was actually performed. However, since the plaintiff tes-tified at his deposition that the emergency room physician did in fact palpate his scro-tum and feel the inside of his thigh, this concern was eliminated. Interestingly, the plaintiff ’s attorney never asked the emer-gency room physician at his deposition why he did not order a urology consultation, which might have changed the treatment and disposition of the patient. However, MLMIC’s emergency physician reviewers determined that, based upon the results of the patient’s physical examination and the radiologic diagnosis, the emergency depart-

ment physician had no basis to request an emergency urological consultation.

The damages claimed by the infant plaintiff included pain and suffering, physical scarring, a cosmetic deficit, and a deformity at the surgical site. It was also anticipated that the infant plaintiff would later need to undergo the inser-tion of a testicular prosthesis.

The MLMIC physician reviewers all concurred that the MLMIC insured radi-ologist incorrectly read the initial prelimi-nary ultrasound and made an incorrect diagnosis. The radiology experts opined that one of the images clearly showed flow which went up and down, which is an abnormal flow pattern. As a result, the lawsuit was ultimately settled on behalf of the radiologist who performed the initial preliminary reading for $250,000. Although his diagnosis was confirmed by the second radiologist, that confirmation occurred one day later, which was too late to have saved the testicle if read correctly.

A Legal & Risk Management PerspectiveDonnaline Richman, Esq., Fager Amsler & Keller, LLPCounsel to Medical Liability Mutual Insurance Company

This case presents several very obvious risk management issues. As often

occurs, calling a specialist to the emergen-cy department to see a patient is within the judgment/purview of the emergency department physician. This must be based upon the patient’s symptoms, age, and any preexisting conditions. From a risk man-

C A S E S T U D Y # 2

Failure to Timely Diagnose Testicular TorsionJanna Consola-Nazarowitz, Senior Claims ExaminerMedical Liability Mutual Insurance Company

agement perspective, testicular torsion is a very serious diagnosis which must be ruled out when assessing a minor patient pre-senting with these particular complaints. Therefore, calling for a specialty consulta-tion is prudent, because the window in which to timely diagnose testicular torsion is relatively short. The failure to have a urologist assess the patient can lead to a delay in diagnosis resulting in permanent injury to the patient.

Another issue which became very important in this case was the lack of adequate documentation by the emergen-cy department physician. Fortunately, the patient testified at his deposition that the physician did, in fact, perform a physi-cal examination. However, if the plaintiff had not so testified, the alleged failure of the emergency department physician to examine the patient might well have resulted in a finding of his liability.

One of the most serious problems in defending this case was the incorrect read-

ing of the films by two different radiologists. The expert physician reviewers retained by MLMIC concurred that the inaccurate preliminary reading of the film by the first radiologist was a substantial cause of the plaintiff ’s injuries. This radiologist had the last clear chance to prevent the patient’s injuries. If the flow had correctly been read as abnormal, there may well have been time for a urologist to immediately perform surgery. Thus, the viability of the plaintiff ’s testicle could have been preserved. However, the reviewers did not believe that the sec-ond radiologist who overread the study incorrectly would be found liable, since his incorrect reading the following day was not the one which actually caused the plaintiff ’s injury. This gave him a valid defense to the question of causation (proximate cause). By the time the second radiologist performed his interpretation, it was unlikely that the testicle was still viable. Therefore, the second radiologist did not have to participate in the settlement of the case. However, from a risk

management and best practice perspective, both readings should have been carefully reviewed by a hospital peer review commit-tee and appropriate corrective actions taken if deemed necessary.

Neither the urologist on call, who declined seeing the patient the following day, nor the office of the pediatric urolo-gist treated the plaintiff ’s complaints as an emergency. While some responsibility for this may have been inadequate com-munication by the emergency department physician and the nursing staff when discussing the discharge instructions, they should have emphasized to the family the critical nature of the need for immediate follow up by a urologist. Finally, the fami-ly should have been more assertive to have their son seen more promptly because of his continued pain.

In summary, a confluence of failures by multiple individuals resulted in the minor plaintiff ’s loss of a testicle and the ensuing sequelae he faced.

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Case #2 continued

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