The judge overturned the jury verdict—would you?

Imagine going through a 5-year long medical liability lawsuit and trial. The jury finds in your favor, but the plaintiff asks for a new trial. Six months later, the judge grants the request and sets aside the previous verdict.

Members of the AAOS Medical Liability Committee want to know what you would do. The online version of this article includes voting buttons and an opportunity for your comments. Read the facts of the case, and visit www.aaosnow.org to let us know your decision.

The initial injury
A 46-year-old male injured his left knee while playing basketball. The emergency department physician diagnosed rupture of the left patellar tendon and, as advised, the patient saw an orthopaedic surgeon the next morning at the hospital.

The patient was evaluated by the surgeon, interviewed by a nurse and a nurse anesthetist, and provided informed consent for repair, which was performed under general anesthesia in day surgery. The surgery was uneventful and the patient was discharged with a prescription for a mild narcotic.

Two weeks later, the patient returned for suture removal. According to the doctor’s notes, the patient was doing well with intact neurovascular status of the leg. The patient was advised to stay in an immobilizer for an additional 3-1/2 weeks and a follow-up appointment was scheduled. Two days later, the patient was found dead in his home due to a massive pulmonary embolism.

Reviewing the notes
The surgeon’s notes recorded that the patient had previously had surgery on the right knee and hernia repair. In the nurse’s notes, “Bleeding/Clotting” is checked, and clotting is circled. The nurse also noted that the patient had a history of deep venous thrombosis (DVT) following anterior cruciate ligament (ACL), medial collateral ligament (MCL) repair and full reconstruction 6 years earlier and a hernia repair at age 16.

The nurse anesthetist also noted DVT related to a prior ACL surgery. At the trial, the orthopaedic surgeon indicated that he did not read the nurses’ notes and was not aware of the history of DVT. The surgeon also said that he does not customarily ask—and he did not ask the patient—about the outcome of prior surgeries, or whether any complications or medical issues arose afterward, because in his experience “they tell you.”

In the initial office visit questionnaire completed by the patient at the postoperative visit, he revealed that he had a family history of blood clotting disorders. The surgeon, who reviewed the form briefly with the patient, recalled asking about this and learned that the patient’s brother had sustained a stroke. The surgeon did not ask the patient about a personal history of clotting disorder.

Past history
As it happened, the orthopaedist who performed the ACL reconstruction was a colleague of the defendant. Those records indicated that 6-1/2 weeks after the surgery, the patient had non-tender but substantial swelling in his right calf. An ultrasound revealed “a very large, deep clot up to the femoral region.” The patient was hospitalized, treated with heparin, and discharged 4 days later on Coumadin, “which he was still taking in mid-December but had discontinued by May of the following year.”

Expert testimony
Expert witnesses testified for both sides. The defendant agreed that a patient with a prior medical history of DVT is at significantly increased risk for another DVT and/or a pulmonary embolism following surgery; that the risk increases if the patient is over 40; and that the standard of care at the time required prophylactic anticoagulation following surgery for a patient known to have this history. Without this history, prophylactic anticoagulation would not be not indicated.

The defendant surgeon testified that if he had known of the patient’s prior DVT, he would have investigated it; that he could have obtained the records of the prior surgery and aftercare from his practice group; that the patient had no contraindications for anticoagulation therapy; and that he therefore would have prescribed it.

Standard of care
According to the plaintiff’s expert witness, asking the patient for the details of the postoperative course after the previous surgery and inquiring for a history of DVT was the standard of care. The expert witness for the defense countered that if review of systems was negative, he “would not specifically ask about DVT.”

The defense expert, when asked if he would inquire about complications following prior surgery, responded that he would ask “what had been done before, how did it work out, is your right knee functioning reasonably well, are there any problems with it?” However, he did not think that this omission was necessarily a deviation from the standard of care.

The verdict
The jury found that the defendant was not negligent, but added a statement to the effect that they believed the surgeon had some responsibility in the patient’s death, but were unable to determine whether the surgeon’s actions deviated from the standard of care.

The plaintiff moved for a new trial on the ground that the verdict was against the weight of the evidence. The judge allowed the motion.

Judge’s opinion
In his opinion, the judge wrote, “The standard that a trial judge is to apply on a motion for a new trial in a civil case is whether the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion. This is an undeniably stringent standard, and is addressed to the sound discretion of the trial judge. When it is met, however, it is the right and duty of a judge presiding at the trial of a civil case to set aside the verdict of the jury.

“A patient might reasonably wonder why he would be put through a detailed interview by a member of the surgical team if the results are simply to go into the file, unread by the physician who will perform his surgery and assume responsibility for his aftercare.

“That said, neither side’s expert witness addressed whether or not the standard of care required the surgeon to review the patient’s chart before surgery and/or before discharge ... It was also evident from the chart that the patient was able and willing to provide such information to those who asked.

“…If the physician is not going to avail himself of the information thus obtained, it would seem he ought to obtain it himself, by posing (at the very least) a question to the patient concerning prior surgeries and their outcomes and complications, as both experts testified was standard operating procedure in the profession.”

Your vote
What would be your verdict in the retrial? Cast your ballot.

S. Jay Jayasankar, MD, is a member of the AAOS Medical Liability Committee. He can be reached at jaymd@massmed.org