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
Kristin Kyle, Esq., Los Angeles
News: On Sept. 23, 2022, a Manhattan jury returned a $28.5 million verdict in favor of a former NFL running back. In 2014, the patient was injured following a tackle during a game. He suffered a fractured leg, damaged cartilage, and an ankle injury. He later underwent surgery at a New York hospital.
In 2016, the patient sued the hospital and the physician — who was the associate director of the hospital’s orthopedic trauma service and chief of the orthopedic trauma service — for medical malpractice for allegedly failing to properly treat his left ankle during surgery and failing to repair one of his damaged ankle bones. The jury determined the plaintiff was entitled to $15.5 million in future pain and suffering, $12 million in lost earnings, and $1 million in past pain and suffering.
Background: Following a tackle, an NFL running back suffered lower-body injuries, including a fractured fibula and cartilage damage to the talus (ankle) bone. The associate director of the hospital’s orthopedic trauma service and chief of the orthopedic trauma service performed the surgery. Although the physician repaired the patient’s fractured fibula, the player alleged the physician did not properly treat the injured talus.
The patient reportedly saw the physician in several postoperative visits; however, his ankle continued to deteriorate. Allegedly, the physician did not recognize or treat it. The patient’s attorney maintained the ankle should have been repaired before it worsened. Subsequent physicians could not salvage it. In 2016, the player filed a malpractice lawsuit.
The physician was a prominent orthopedic surgeon who was known for treating celebrities. But in December 2017, the 54-year-old physician was found dead by his 11-year-old daughter on the bathroom floor of the family’s home with a knife stuck in his chest. The death was ruled an apparent suicide. The lawsuit proceeded against the hospital and the physician’s estate.
The defense said it would appeal the verdict.
What this means to you: In this matter, the principal issue related to the physician’s failure to evaluate, diagnose, and treat the patient’s talus bone and cartilage condition. The plaintiff argued the physician delayed and/or misdiagnosed his condition and provided improper treatment, resulting in permanent damage. Unfortunately, misdiagnosis and delay in diagnosis of orthopedic conditions are common forms of medical malpractice.
Generally, a physician owes the patient these duties:
- Obtaining the requisite knowledge and skill;
- Exercising reasonable care and diligence in this knowledge and skill;
- Using his or her best judgment in applying the knowledge and skill.
Medical malpractice can arise from a lack of knowledge, lack of ability, failure to exercise reasonable care, or failure to use one’s best judgment. Frequently, the physician’s knowledge, ability, and judgment are factors in whether he or she deviated from accepted care standards. If a physician in the same or similar circumstances, with the same information concerning the patient, would have correctly diagnosed a condition or illness, or done so much sooner, then a failure to do so may constitute a deviation from the applicable care standards.
According to testimony, the physician saw the plaintiff in several postoperative visits, wherein the plaintiff repeatedly complained about ongoing ankle pain and continued deterioration. These symptoms should have indicated to the physician further examination and inquiry were necessary. The physician was informed of the ongoing deterioration, but reportedly took no action to determine whether further treatment was necessary. Given the injury and reports, the surgeon in this case should have performed further evaluation — and the jury determined the physician’s failure to do so constituted malpractice.
It is important for providers not only to listen to a patient’s reports, but to follow up and act. When faced with patient reports of pain and/or complications that do not align with the provider’s view of the postoperative convalescence and rehabilitation, it is important for the provider to recognize and solicit peer opinions and consultation. In this case, it was clear the patient told the physician his ankle was not improving. The patient himself consulted other surgeons — albeit too late — who agreed the bone was deteriorating. Had the physician consulted with peers, the patient’s condition may have been discovered in time to repair it.
This is a situation risk managers and defense attorneys see more times than they can track. Specialists are particularly susceptible to these lawsuits because they tend to complete their initial treatment and surgery, and only peripherally monitor the postoperative care. Here, the patient’s complaints were not addressed adequately, even though subsequent physicians recognized the red flags. Postoperative care is based on the patient’s condition following surgery. It is not a preprinted, one-size-fits-all order set in the electronic medical record. While most orthopedic patients fare well after surgery, it is not always the case. Diligent monitoring and peer consultation would have gone a long way to identifying the ongoing cartilage condition with the talus bone. Adopting a consistent practice of peer consultation in cases where patient reports do not align with the medical evidence could operate twofold:
- As a continuation of the medical care standard to ensure no diagnosis is dismissed or delayed;
- As a mental and physical support for the treating physician in his or her practice.
REFERENCE
- Decided Sept. 23, 2022, in the Supreme Court of the State of New York, County of New York, Case Number 805214-2016.
In this matter, the principal issue related to the physician’s failure to evaluate, diagnose, and treat the patient’s talus bone and cartilage condition. The plaintiff argued the physician delayed and/or misdiagnosed his condition and provided improper treatment, resulting in permanent damage. Unfortunately, misdiagnosis and delay in diagnosis of orthopedic conditions are common forms of medical malpractice.
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