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Medical and Legal Expertise Fail to Prevent Excessive Verdict
Repurposed from the Scope, Medical Edition, Third Quarter 2024
Initial Treatment
A 43-year-old, married father of three and soldier in the U.S. Army presented to the emergency room (ER) of a MLMIC-insured hospital with complaints of muscle pain in his right calf, problems with ambulation and tingling, swelling and bruising of the toes. He was initially triaged by the nursing staff. A history of injury to his foot during barefoot combat training two weeks prior was noted. He had seen his primary medical physician one week prior and was prescribed Motrin and physical therapy, which he did not undertake.
At the ER, the patient was seen by a MLMIC-insured physician assistant (PA), who was supervised by a MLMIC-insured ER physician. An ultrasound was negative for deep vein thrombosis (DVT), and circulation, motion and sensation appeared to be intact. The patient next underwent an X-ray of the right foot, the results of which were negative for fracture or dislocation. The patient was subsequently diagnosed with tendonitis of the foot, prescribed ibuprofen and was advised to ice the area and follow up with an orthopedist and podiatrist, for which referrals were provided. He was discharged home on crutches.
Three weeks later, the patient presented to another hospital with complaints of severe pain in his right fourth toe with discoloration of the toes that had begun three weeks prior. He had been seen at his Army clinic, where a dermatologist performed a biopsy of the fourth toe to rule out vasculitis. The patient returned one week later for suture removal and was referred to a vascular surgeon. However, he did not wait to be seen and proceeded to the hospital, where he underwent a venous ultrasound that revealed a non-occlusive DVT within the right popliteal vein. The patient also underwent an arterial ultrasound that revealed a right popliteal artery occlusion. A further right lower extremity angiogram found the distal superficial femoral artery (SFA) and the popliteal artery to be completely occluded. As a result, thrombolysis began. After two days, it was apparent that there were no changes from the previous angiograms.
The patient was subsequently seen by a vascular surgeon. Catheters could not pass into the popliteal vessel, and a decision was made to attempt a bypass revascularization for limb salvage; however, the bypass would not remain patent. After the procedure, the patient became hypoxic and was brought to the ICU and noted to have a heterozygous mutation in Factor V Leiden, a blood-clotting disorder, as well as heparin-induced thrombocytopenia (HIT).
The following day, the patient’s right foot was cold and mottled, and two days later, his calf was noted to be cold and the right foot non-viable. The next day, he underwent exploration of the right calf, where it was found that the muscles were dead. An above-the-knee amputation was performed.
Post-op, the patient was seen by the vascular surgeon with complaints of phantom pain, but his condition had improved. He was referred for rehabilitation with the use of an above-the-knee prosthetic. Subsequently, the patient was seen by a gastroenterologist due to elevated liver enzymes, which were attributed to the muscle injury. In addition, he underwent platelet treatment and was prescribed Coumadin.
The Lawsuit
The patient brought a lawsuit against the MLMIC insured PA and ER physician, their professional entity and the hospital. The plaintiff alleged that our insureds failed to diagnose a right lower extremity ischemic occlusion, which resulted in the above-the-knee amputation of his right lower leg.
In addition, the patient claimed he was active prior to the incident and did household chores as well as outside activities. He testified that, after this incident, he could no longer perform chores or mow the lawn and claimed he could not drive (though he was never advised that he could not do so). Further, the patient claimed memory issues that prevented him from handling the household finances.
Expert Review
The case was reviewed by specialists in nursing, emergency medicine, vascular surgery, radiology and hematology, and a decision was made to proceed to trial. The reviewers found that there were benign radiological findings with no DVT or fractures and that the patient was discharged with appropriate instructions. The patient likely had a partial arterial occlusion of the right lower extremity when he presented to the hospital. Despite collateral flow that made the diagnosis difficult, the tests, films and follow-up care were appropriate.
Although the PA and ER physician failed to document the pulses when the patient was initially seen in the ER, those pulses were present on subsequent examination. In addition, the patient was seen in the orthopedic clinic and by a dermatologist, but neither diagnosed lower extremity ischemia.
A venous ultrasound ruled out a DVT, and a diagnosis of the occlusion that led to the amputation was performed after this ultrasound. MLMIC’s vascular surgery expert found no deviations from the standard of care and believed the patient had a partial occlusion of the popliteal artery due to trauma and was dissecting when the patient was first seen in the ER. However, the patient showed no symptoms of arterial occlusion; thus, no additional studies were ordered. The imaging was interpreted correctly.
The only weakness of the patient’s care was the failure to obtain an arterial Doppler study during the first ER visit to rule out arterial injury. However, the radiology expert advised that he would not order an arterial ultrasound in the wake of a negative venous ultrasound that showed the vessels to be patent. It was likely that the occlusion was not present when the patient was initially seen in the hospital and, as such, would not have been detected had an arterial ultrasound been ordered. The hematology expert opined that the vascular injury and the Factor V Leiden deficiency and HIT likely contributed to the failure of the bypass.
The Trial
This matter proceeded to trial under COVID restrictions, where masks were required in the Supreme Court. As such, it was difficult for counsel to “read” any expressions or reactions by the jurors during the trial. It was up to the plaintiff’s counsel to prove the claim that the patient had a traumatic popliteal dissection or occlusion when initially seen in the hospital. The plaintiff’s counsel presented a video of our insured PA, depicting a contentious deposition during which the plaintiff’s counsel attacked his character. The defense counsel countered this testimony by stating that the witness was comfortable in the ER, not the courtroom.
The plaintiff’s counsel then presented an Emergency Medicine expert. While this physician argued that arterial occlusion should have been a consideration and it was a departure from the standard of care to not order an ultrasound or CT angiogram when there was a negative venous ultrasound, he conceded that pulses were present later and, thus, would have been present during the earlier ER visit.
The plaintiff’s counsel also called a vascular surgeon, who testified that the plaintiff had a popliteal artery dissection that would have been diagnosed with an arterial ultrasound or CT angiogram and concluded that the failure to do so resulted in the loss of the limb. However, he conceded that he would not be called to see a patient in the ER unless a vascular issue was identified. He was shown the reports of the ultrasounds and angiograms performed on the patient, none of which showed dissection.
The plaintiff’s counsel then produced a video of the prosthetist, who discussed the patient’s prosthetic needs, and a pain management specialist, who discussed the patient’s complaints of pain in his hand and shoulders from wheeling his chair and pain in his hips, foot and back due to the difference in his gait with the prosthetic. A psychologist also discussed the patient’s post-traumatic stress disorder due to combat, though it was suggested that it was actually from the amputation. A Vocational Rehabilitation expert and Life Care Planner also testified as to the plaintiff’s damages.
The plaintiff and his wife were the last to testify, and they described their lives before and after the amputation. This testimony was emotional and had no mention of the medical care provided.
At the conclusion of the plaintiff’s case, requests by the defense to dismiss the case were denied by the judge.
The defense counsel first produced MLMIC’s radiology expert, who testified that there was no occlusion or dissection of the artery when the patient was seen in the ER, which was supported by the images, and said that the occlusion occurred weeks later, as the pulses were still palpable. It appeared that the jury listened intently to this witness’ testimony but appeared disinterested during the plaintiff’s cross-examination of the witness.
The emergency medicine physician was next to testify and described what occurred when the patient first presented to the ER, her review of the PA’s treatment, and the conclusion that the care was appropriate. She supported the PA, describing his care for his patients.
MLMIC then produced a vascular surgery expert, who testified that popliteal dissection is rare and usually the result of a traumatic knee injury. He disputed that there was a dissection and opined that the occlusion occurred some three weeks after the patient’s initial visit to the hospital.
The last witness was the ER expert, who supported his opinions using entries from the patient’s medical record and the six “p’s” of arterial occlusion — pain, paralysis, paresthesia, pulselessness, poikilothermia and pallor. He agreed that an arterial ultrasound was not indicated and that a DVT ultrasound was appropriate, as DVT was suspected due to the patient’s complaints of calf pain. The expert felt that the diagnosis of tendonitis was reasonable, as traumatic popliteal dissection is rare.
At the close of the defendants’ case, motions to dismiss were made, and the Court reserved decision.
Summations
Summations ensued. The defense counsel suggested that no proof was offered that earlier action may have salvaged the patient’s leg and that sympathy should not sway the jurors, as they are required to follow the law.
In contrast, the plaintiff’s emotional summation suggested that the jury award “one to two million for past pain and suffering” and “several times that” for future pain and suffering. The jury then received the case.
The Verdict
During deliberations, the jury requested information provided by the Life Care Planner and the Economist, in addition to a calculator. At that point, a decision was made to discuss the case with the defendants, and consents to settle the case were secured. However, the plaintiff’s counsel refused to engage in settlement discussions, and the jury subsequently returned an excessive verdict in favor of the plaintiff. They found negligence on the part of our insureds and suggested that this was a substantial factor in causing the plaintiff’s injuries.
The MLMIC-insured ER physician was found 20% liable and the PA was 80% liable. Prior to trial, it had been stipulated that the professional entity and the hospital would be vicariously liable under Mduba in order to avoid separate questions posed to the jury against these defendants.
Post Verdict
Post-trial motions ensued, with the court denying most except the motion to set aside the award for future pain and suffering as excessive and ordering a new trial on that issue. However, a settlement was eventually reached with the plaintiff, avoiding an appeal of the verdict.
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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.
