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
News: A man underwent spinal surgery and noticed substantial drainage at the surgical site shortly thereafter. Despite multiple follow-up visits to the physician and the physician’s practice group, the drainage continued, and the patient’s condition worsened. The physician prescribed antibiotics and otherwise told the patient to lie flat and wait. The patient eventually died from an infection.
The patient’s surviving spouse filed a malpractice and wrongful death action, alleging that the failure to timely diagnose and treat the patient was malpractice. The patient’s surviving spouse named the defendant physician, the medical practice group, and the surgery center. The defendants denied liability. The trial court granted a defense motion, dismissing all defendants, which was appealed. The appellate court confirmed dismissal for the practice group and surgery center but reinstated litigation against the physician. The varied results offer lessons in using and handling experts.
Background: On Feb. 19, 2015, a man underwent spinal surgery, a decompressive lumbar laminectomy on the left L4-5 with discectomy. The surgeon informed the patient and his wife that the surgery had gone well, except that something had been “nicked.” The surgeon informed the patient’s wife that the patient should lie flat on his back for a few days.
On Feb. 25, the patient noticed drainage from the surgical site and that his clothing in the back was soaked. The patient informed the surgeon that day, and the surgeon told the patient to go home and lie down because it would take time.
On March 3, the patient’s wife again contacted the surgeon requesting an appointment because the patient’s drainage had worsened. The patient and his wife returned to the surgeon’s office that day and saw a registered nurse practitioner who noted that the patient reported clear drainage from the incision and a positional headache. The nurse practitioner likewise informed the patient to return home and lie down but to come back the following day if it was still leaking.
On March 4, the patient’s incision continued leaking. The patient and his wife returned to the surgeon’s office. The surgeon suspected that the patient was experiencing a cerebrospinal fluid (CSF) leak. The surgeon told the patient to get bed rest until his suture removal appointment on March 9.
However, when the patient returned on March 9, the surgeon determined that the sutures should not be removed given the continued drainage. The surgeon prescribed antibiotics and sent the patient home. Two days later, the patient noticed yellow pus coming from the wound. When the patient returned to the practice, he had a temperature of 99.4 degrees and reported intermittent chills, more yellow drainage, and lower back pain around the incision. A nurse visited the patient’s home over the following weekend to perform wet-to-dry dressing changes.
When the patient returned the following Monday, the nurse reported that the wound had significantly worsened, and the patient was admitted to a nearby hospital. On March 20, the surgeon performed a second surgery to fix the leak in the spinal area. However, the surgeon did not find a leak, and a culture of the wound did not show signs of infection. The patient’s condition continued to worsen, and he died on April 10, 2015. The patient’s discharge summary from the hospitalist noted suspected meningitis and suspected septicemia.
The patient’s spouse filed a medical malpractice and wrongful death action against the defendant care providers, including the surgeon, his practice, and the medical center. The plaintiff alleged that the surgeon breached the applicable standard of care by failing to timely diagnose and treat the patient, particularly given the drainage. The defendants denied liability.
On Sept. 14, 2021, the litigation proceeded to a jury trial. The plaintiff presented testimony from two experts, including an orthopedic surgeon with experience in treating patients with postoperative lumbar wounds, and an infectious disease expert. The expert surgeon testified that a dural tear occurred during the first surgery, but that the defendant surgeon was not at fault because such tears can happen to anyone. The expert further noted that once the leak was known, more should have been done, and the patient’s life could have been saved by earlier diagnosis and treatment. Similarly, the infectious disease expert testified that the patient had an unresolved infection from the initial surgery, and earlier diagnosis and treatment would have prevented the patient’s death.
The trial court granted the defendants’ motion for a nonsuit, and the plaintiff appealed. The appellate court agreed in part: It affirmed a judgment dismissing claims against the defendant medical practice and defendant surgery center, but it reversed the dismissal as to the defendant surgeon. The appellate court noted that the plaintiff’s experts held differing opinions about what fluid was leaking from the patient’s incision, but that did not invalidate their opinions.
What this means to you: In this case, there were multiple forms of malpractice as alleged against the various care provider defendants. The allegation against the surgeon was that his failure to timely diagnose and treat the patient constituted malpractice. Factually, there was no dispute about the patient’s cause of death — it resulted from an infection. Legally, the defendant physician’s initial challenge to the plaintiff’s case was not to directly attack that factual premise itself, but to instead challenge the plaintiff’s experts. The defendant physician claimed that the two experts’ disagreement was so contradictory and conflicting that it provided no basis for the jury to determine malpractice. Although this was initially successful, the appellate court reversed that determination.
The appellate court recognized the experts’ disagreement but noted that the disagreement pertained to the nature of the fluid leaking from the patient’s surgical site and the origin of the infection. Although the experts were retained by the same side — the patient’s surviving spouse — the experts did not agree on these two items. This provided the defendant physician an opportunity to note that discrepancy within the same party’s side and to claim the inherent contradiction and conflict barred recovery. The appellate court looked to the basis of the disagreement and found that whatever the fluid was, and whatever the origin of the infection was, it was not disputed that fluid was draining and an infection occurred.
Typically, experts are a vital resource in medical malpractice cases for both sides, which leaves opportunities for defendant care providers to evaluate an opposing side’s experts. Experts can be directly attacked based on a lack of qualifications or a lack of specific expertise, particularly when a specialized area of medical practice is involved. Alternatively, as in this case, an expert’s opinions can be the basis for challenge, whether those opinions fail to stand on their own or whether those opinions conflict with other issues in the matter. As recognized by this appellate court, a difference of opinion is not inherently fatal, even if the experts represent the same side.
Nevertheless, to the extent possible, it is beneficial for one’s experts to maintain consistency. If a medical provider retains and proffers the opinions of multiple experts, they should consider consulting each other before reaching conclusions, or the provider could independently evaluate the expert’s opinions before offering that individual as an expert to prevent contradictory opinions. In this case, the plaintiff’s experts did agree on the core issue of the physician’s failure to diagnose and treat the infection. Both opined the defendant physician should have taken further steps to diagnose and treat the patient’s infection. The appellate court noted that resolution of these issues was proper for the jury and that the trial court ignored evidence and usurped the jury’s role.
The allegations against the medical practice and surgery center were based on a claim that the registered nurse practitioner violated the standard of care by not contacting her supervising physician. The trial court recognized, and the appellate court affirmed, that the uncontradicted evidence showed the nurse did contact her supervising physician. She spoke with the physician before she wrote the March 13, 2015, orders. Both the nurse and the supervising physician testified to that fact.
In addition to the issues with the expert witnesses, the fact that the patient’s frequent cries for help were not immediately addressed is troublesome. A basic premise in risk assessment is that when the expected outcome varies from what is usually experienced by other patients with similar diagnoses and the patients return or call continually, there is a problem. To assume that this patient is just not tolerating postoperative pain or mobility restrictions is dangerous. Spinal fluid leak is a possible problem after any spinal surgery, especially with a dural tear. The fluid could have been tested to confirm its existence. However, the fact that the patient was experiencing headaches, a common side effect of a CSF leak, should have made the leak known to all practitioners. In addition, a leak of any fluid from a sterile area of the body is a passageway for infectious bacteria. These are not uncommon findings for this type of procedure, but they are externally dangerous when ignored for any significant amount of time.
REFERENCE
- Decided Jan. 8, 2024, in the Superior Court of Pennsylvania, Case Number 368 MDA 2022.
Factually, there was no dispute about the patient’s cause of death — it resulted from an infection. Legally, the defendant physician’s initial challenge to the plaintiff’s case was not to directly attack that factual premise itself, but to instead challenge the plaintiff’s experts.
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