News: A 53-year-old man was admitted to a hospital and diagnosed with osteomyelitis in his toe. A physician disarticulated his toe the following day. The patient scheduled follow-up appointments and received care from the same physician, but the patient was later diagnosed with additional osteomyelitis. The patient’s right foot was amputated, followed by a below-the-knee amputation.
The patient filed a lawsuit against the first physician, claiming the physician failed to treat the initial osteomyelitis that resulted in the subsequent amputations. A jury disagreed with the patient’s claims and found in favor of the defendants. The patient’s appeal was rejected, and the defense verdict was maintained.
Background: In 2014, a 53-year-old man experienced swelling in his right big toe, which would last a day or two and then resolve. The patient experienced deep vein thrombosis (DVT) after a hip replacement in 1997. To prevent future DVTs, he received an inferior vena cava (IVC) filter, which also caused venous hypertension, affecting the patient’s wound-healing abilities.
In spring 2015, the patient was working as a union pipe fitter and welder and noticed irritation in his toe. He visited an emergency room near the job site in a different state and was told he needed surgery. The patient visited a hospital closer to his home, where he was diagnosed with osteomyelitis of his toe and was admitted for surgery on April 3, 2015. A physician disarticulated the patient’s toe the following day. The patient received IV antibiotics, was discharged on April 5, and was instructed to take oral antibiotics and pain medication.
On April 20, May 6, and June 8, 2015, the patient had follow-up appointments with the same physician. At the June visit, the patient’s skin was warm with redness and localized edema. The physician diagnosed him with cellulitis and prescribed Diflucan and Bactrim. On June 10, the patient returned to the hospital and was treated with vancomycin and discharged shortly thereafter. Later that day, the physician ordered an MRI, but the patient could not undergo an MRI due to the IVC filter and metal in his eye. Instead, medical staff performed a CT scan that revealed osteomyelitis of the second, third, and fourth metatarsal heads with significant degenerative changes and septic arthritis.
On June 12, 2015, the patient’s right foot was amputated by a different physician. From 2015 to 2019, the patient received other regular medical care but not for his right foot. In October 2019, the patient developed a new infection. A different physician performed a below-the-knee amputation of the patient’s right leg to prevent the infection from spreading.
In July 2015, the patient and his wife filed a malpractice action against the first physician and hospital, claiming that the physician failed to treat the patient’s osteomyelitis in his toe that resulted in the subsequent amputations. The defendants denied liability and provided two expert opinions — one from an orthopedic foot and ankle surgeon and one from an infectious disease specialist.
Both the plaintiffs and defendants sought summary judgment before trial, but the court denied each of those motions. The matter proceeded to a jury trial in June 2022. The plaintiffs’ witnesses were the patient and his wife, economics experts, and the chairman of a medical review panel. The defendants’ witnesses were the first physician, his two retained experts, and a different member of the medical review panel.
The jury found in favor of the defendants, assigning no liability. The plaintiffs appealed, but the appellate court confirmed that there was no error warranting reversal for the trial court’s exclusion of evidence, for limiting the plaintiffs’ arguments, or for the panelists’ changed opinions.
What this means to you: There are multiple avenues for defendants to prevail and secure a defense verdict. In this case, the defense experts showed that the treatment provided for osteomyelitis met care standards and that the progression of osteomyelitis in the lower extremities of certain patients, especially with certain comorbidities, is not always preventable despite the efforts of providers. Thus, the defendant physician was cleared of any malpractice after the full presentation of cases to a jury. But before that presentation, both sides also filed motions for summary judgment, arguing that they should prevail as a matter of law without any issues going to the jury. Such motions are typically when there is no dispute about material facts, allowing a judge to make determinations as a matter of law. Both the plaintiffs and defendants filed these motions, but the trial court denied their arguments. Motions for summary judgment can be an effective tool when the relevant facts are undisputed; this can prevent the need for trial and a jury’s determination, which is inherently risky and unpredictable.
It can be difficult to prevail on these motions because trial courts are often deferential to juries if there are any questions as to whether there is a dispute or questions as to whether they are material. Moreover, appellate review frequently applies different standards to summary judgment motions that are determined by judges compared to verdicts determined by juries. Appellate courts are stricter on legal issues and findings by courts. They regularly defer to juries when it comes to factual findings because appellate courts do not have the firsthand opportunity to evaluate witnesses. Appellate review is based on the written records, transcripts by reporters who record witness testimony, and documentary evidence. Evaluating a witness for credibility, sincerity, or persuasiveness via a written transcript is far more challenging, if not impossible. If a jury finds a witness to be credible — or the opposite — an appellate court is unlikely to challenge that determination.
This is not inherently positive or negative for defendants, but it can be instructive in evaluating cases during litigation, after a jury verdict, or during the appellate window. In this case, after the trial court denied the summary judgment motions, a jury heard the case and returned a verdict for the defendants. The plaintiffs appealed, arguing that they were prejudiced by trial court rulings concerning testimony. Unsurprisingly, given the deferential standard to juries, the plaintiffs did not directly attack jury findings. Instead, they argued that the trial court should not have excluded evidence about the patient’s below-the-knee amputation, which occurred after the litigation was filed. The appellate court noted that it would only reverse the findings if the decision was “clearly against the logic and effect of the facts and circumstances before the court” and if the error was “inconsistent with substantial justice.” However, the appellate record revealed that the jury was allowed to hear some evidence of the patient’s below-the-knee amputation, and there was no harm.
Finally, this case shows the importance of experts and their testimony. Each side provided expert testimony, but it appears that the testimony and story presented by the defendant were more persuasive. Indeed, the plaintiffs relied on the medical review panel chairman, who initially agreed with the patient but subsequently changed his opinion. The defendant retained and presented expert opinion from a surgeon and infectious disease specialist. Experts are almost always necessary in medical malpractice litigation. The difference between retaining a persuasive expert or experts and retaining an expert who is unprepared, unexperienced, or who wavers in his or her position can be the determining factor in whether a case results in a multimillion-dollar verdict or a successful defense verdict.
REFERENCE
- Decided Dec. 11, 2023, in the Court of Appeals of Indiana, Case Number 22A-CT-1594.
There are multiple avenues for defendants to prevail and secure a defense verdict. In this case, the defense experts showed that the treatment provided for osteomyelitis met care standards and that the progression of osteomyelitis in the lower extremities of certain patients, especially with certain comorbidities, is not always preventable despite the efforts of providers.
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