Published 12/1/2009

The anatomy of a lawsuit

A case study of the toll it takes

The case involved a patient who, despite having 10 successful prior surgeries with no clotting, had massive clotting throughout his body following uncomplicated total knee replacement.

Medical facts
The patient, a 52-year-old man of normal stature and habitus, had a history of constant and increasing left knee pain that caused difficulty with walking, stair climbing, rising from a seated position, and sleeping. Radiographs revealed bone-on-bone end-stage osteoarthritis. Because conservative management had failed to control the pain, the patient requested joint replacement surgery. The office note indicates that the patient had successfully undergone 10 assorted prior surgeries without any clotting complications.

A month later, an uncomplicated left total knee arthroplasty was performed. Following his normal custom, the orthopaedic surgeon prescribed a prophylactic anticoagulant (enoxaparin). Throughout his hospital stay, the patient did not demonstrate signs or symptoms of venous thromboembolism (VTE) to any of the five physicians who managed his care. Pain management, however, was challenging, and an anesthesia pain management specialist was called in. (This also had been necessary during a previous back surgery.)

The operating surgeon saw the patient on postoperative days 0, 1, and 2; the surgeon’s partner provided coverage on days 3 through 5, when the patient was discharged. Notified of redness around the incision on postoperative day 3, the operating surgeon ordered broad-spectrum antibiotics and a consultation with an infectious disease specialist.

On postoperative days 4 and 5, the patient demonstrated some hypoxia. A pulmonary consultant provided both a clinical examination and a computed tomography angiogram; both were negative for any clots. Believing that the hypoxia was due to atelectasis, the pulmonary consultant ordered aggressive incentive spirometry and cleared the patient for discharge.

The surgeon’s partner evaluated and discharged the patient on prophylactic enoxaparin, providing discharge instructions to the patient that included review of signs and symptoms of blood clots.

One week after the original procedure, the patient was found dead in his bed. The family reported that just 3 hours earlier, the patient had been sleeping deeply and snoring. The autopsy findings stated that the cause of death was “cardiorespiratory failure secondary to massive thromboemboli and thrombi involving extensively the components of the cardiovascular system.”

According to the pathologist, “The extensive clot formation suggests to me that this individual had some form of hypercoagulability syndrome.” The microscopic evaluation by the pathologist found that the thrombi had “very little organization and probably represent perimortem thrombi related to massive clotting and subsequent sudden death.”

When the surgeon learned that the patient had been found dead, he called the family to express his surprise and sorrow. After speaking with the pathologist, the surgeon again called to relay the autopsy finding and expressed surprise that this event occurred, even though the patient had been given the appropriate preventive medication.

The lawsuit was filed more than 23 months later—just 1 day short of the state’s 2-year statute of limitations—by a well-known medical liability plaintiff’s attorney.

The trial
“From my perspective, the issue of this case was whether an ortho-paedist should be held responsible for fulminant heparin-induced thrombocytopenia and thrombosis (HITT) syndrome that occurred 5 days after I last saw the patient and 2 days after he was discharged,” said the surgeon.

The trial lasted more than 3 weeks. “By the time my two fellow defendants and I testified,” said the surgeon, “I believe that the members of the jury had already made up their minds due to the repetitive, confusing, and argumentative presentation by the plaintiff’s side.”

The jury found the orthopaedic surgeon responsible for the actions of his partner who had cared for the patient over the weekend. “Frankly, I felt my partner acted reasonably. I do not understand why the law would hold me responsible for the independent acts of a fellow board-certified orthopaedist over whose judgment I exercise no control,” the surgeon said.

Court of Appeals
The orthopaedic surgeon appealed the verdict, but the appeal court upheld the district court jury verdict. “I strongly disagree with the Court of Appeals position that one physician may have vicarious liability for the professional negligence of another physician exercising his or her own independent medical judgment,” said the surgeon. “It is my opinion that a physician has sole and final control over matters of independent diagnosis and treatment. In other words, an orthopaedist rounding over the weekend on a patient in my absence is not in fact under my supervision and control.”

The surgeon noted that he was not contacted about the patient at any time between the time of the phone call regarding the incision and the time when he learned of the patient’s death. Nor was there any testimony to the contrary at trial. Yet, the Court of Appeals based its opinion on the assumption that the surgeon had been contacted.

“I believe the patient received attentive care from the physicians on his healthcare team—myself, a board-certified orthopaedic surgeon with 27 years of experience; two additional excellent orthopaedists; a pulmonologist; and a pain management anesthesiologist. None of us found any clinical signs or symptoms that would lead to the diagnosis of VTE and necessitate a duplex ultrasound,” said the surgeon.

This case had few winners in the end. The patient’s family spent years seeking “justice,” yet the adversarial process left them with a fraction of the indemnity awarded them, and likely no better able to accept the unfortunate death of their husband and father. The plaintiff attorney collected a contingency fee and costs.

The surgeon, despite positive reviews from all orthopaedic experts who reviewed the care and the full support and defense from his medical liability insurer, was found liable. The total cost of the defense and indemnity payment was nearly twice his medical liability policy limits. In fact, due to the lengthy process and appeal, the cost for attorneys, experts, and other defense expenses actually exceeded the award.

“Fortunately, defense costs are provided in addition to my policy limits for indemnity awards, so my personal assets were not exposed,” said the surgeon. “I can only conclude that this is an irrational, inefficient, and ineffective system.

“Our tort system requires us to mingle compensation and negligence, pitting a physician against his patient,” he continued. “Until we reform this system, we are left with a very dissatisfying experience for doctor and patient. We have a system that serves neither the patient nor the physician and is costly, much lengthier than anticipated, and disruptive to all.

“I hope that my case was an aberration and that other colleagues will not receive similar legal judgments of what should be defensible care. Both my insurer and the literature suggest that 80 percent of medical liability trials in which the care has excellent expert support are found in favor of the physician. My hope is that my story ably describes the personal anguish of the process. There are no winners at the end of this process, regardless of the outcome.

“I enjoyed this patient and felt professional pride at the quality of his knee replacement and his medical care. I have never had a case of HITT before and cannot express the depth of my shock at his unexpected and sudden death and my sorrow for his wife and family at his passing.”

Editor’s note: The following story is based on the personal experiences of an AAOS member. In the interests of personal privacy, names have been omitted.

Additional References:

  1. Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008)
  2. Herskovits v. Group Health Coop. of Puget Sound, 99 Wash. 2d 609, 614 (1983)
  3. The SJC offered the following illustration: “Suppose in a wrongful death case that a jury found, based on expert testimony and the facts of the case, that full wrongful death damages would be $600,000 (step 1), that the patient had a 45% chance of survival prior to the medical malpractice (step 2), and that the physician’s tortious acts reduced the chances of survival to 15% (step 3). The patient’s chances of survival were reduced 30% (i.e., 45% minus 15%) due to the physician’s malpractice (step 4), and the patient’s loss of chance damages would be $600,000 multiplied by 30%, for a total of $180,000 (step 5).” (References omitted.) Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008)
  4. K.S. Abraham, Forms and Functions of Tort Law 117-118 (3d ed. 2007)
  5. Restatement (Third) of Torts: Liability for Physical Harm § 26 comment n (Proposed Final Draft No.1, 2005) comment n (Draft Restatement)
  6. Renzi v. Paredes, 890 N.E.2d 817 (Mass. 2008)
  7. Ten state courts have refused to adopt the loss of chance doctrine. The remaining state courts have not addressed it or explicitly left the issue open.
  8. Kessler DP, McClellan MB: How liability law affects medical productivity. Journal of Health Economics 2002;21:931-955.
  9. AAOS Position Statement on Medical Liability Reform Accessed on October 26, 2009.