Virginia Lawyers Weekly//December 27, 2018
Virginia Lawyers Weekly//December 27, 2018//
An African-American male, 46, presented to Dr. Dalton for a hip replacement. He was the father of six and operated a towing/salvage business in Richmond. He was persuaded to consent to an anterior approach total hip replacement. The procedure took twice as long as normal (4+ hours), involved four times the normal blood loss, and was described by Dr. Dalton as the “most difficult hip replacement” he’d ever done. He fractured the greater trochanter during the procedure and repeatedly acknowledged in his operative report that he failed to obtain sufficient exposure. Dr. Dalton did not recognize or suspect that he had caused an injury to the femoral nerve, and when he was asked during his deposition what he did during the procedure to protect the femoral nerve, he responded, “Nothing.”
The patient woke up from the procedure with complete left quadriceps motor loss, and sensory loss in the femoral nerve distribution. The patient was repeatedly informed by Dr. Dalton that he had merely suffered a “stretch injury” that would improve with time. This was in spite of the fact that the patient failed to show any improvement in his motor or sensory loss, and an EMG test provided objective proof of a severe femoral nerve injury and complete lack of recruitment of the quadriceps muscle. Nonetheless, at no point in time did Dr. Dalton entertain the possibility of a lacerated or transected femoral nerve, and at no point in time did Dr. Dalton consult a nerve specialist or consider a surgical exploration of the femoral nerve.
The patient discontinued treatment with Dr. Dalton after approximately five months, and eventually self-referred to VCU Orthopaedics. After extensive workup, a surgical exploration of the femoral nerve revealed a roughly 6 cm gap between the ends of the nerve. Given the size of the injury and Dr. Dalton’s delay in obtaining a surgical repair, the patient’s femoral nerve transection could not be treated at that time. The patient awoke from the surgical exploration at VCU to learn, for the first time, that his condition was permanent and untreatable, and that he would never walk unaided again.
Plaintiff contended that Dr. Dalton violated the standard of care when he transected the femoral nerve with a retractor during the hip replacement, and when he failed to identify and treat the injury postoperatively. Two of plaintiff’s treating physicians from VCU testified as retained experts on plaintiff’s behalf, in addition to a world-renowned femoral nerve injury expert from Seattle.
The defense did not contest the plaintiff’s evidence that a transected or lacerated femoral nerve must be repaired within six months to have any significant chance of recovery. Instead, the defense contended that Dr. Dalton complied with the standard of care intraoperatively but that the patient nonetheless suffered a “stretch” injury as an unavoidable consequence of the nature of the procedure.
The defense further contended that Dr. Dalton reasonably concluded that the patient only had a “stretch injury” for over five months, and that at some unknown time after the patient stopped seeing Dr. Dalton, “scar tissue” led to ischemia that caused the body to transect its own femoral nerve.
The defense called Joe Moskal, M.D., the chair of Carilion Roanoke Memorial Hospital’s Department of Orthopaedics, and A. Brion Gardner, M.D., of Manassas. Each of the defense experts testified that the patient suffered a “stretch injury” and that a stretch injury can, and did, occur in the absence of negligence in this case. On cross, each defense expert conceded that he had never seen a femoral nerve completely transected from an anterior hip replacement, and had never heard of any surgeon anywhere in the world (other than Dr. Dalton) who had suffered such a complication. The defense also relied upon Dr. William Conrad from Radiology Associates of Richmond. Dr. Conrad, who admitted on cross that he was one of defense counsel’s clients, attempted to opine that “magnetic susceptibility artifact” allowed him to determine, over four years later, exactly where Dr. Dalton’s instruments were at all times during the hip replacement, and that at no point in time were Dr. Dalton’s instruments anywhere near the femoral nerve.
Plaintiff recalled one of his treating physicians from VCU (who had previously testified as to standard of care) to rebut the undesignated opinions of Dr. Conrad. He testified that Dr. Conrad’s theory was “magical thinking” that had he never seen or heard about in over 18 years of practice.
The jury was out for about an hour before coming back with two questions: (1) Do we need to provide a written statement of our reasoning; and (2) May we have a calculator? After the court provided a calculator to the jury, they came back in about 15 minutes with a third question: Can you explain more about how we award interest? The Doctors’ Company still failed to make any settlement overtures.
About another 15 minutes later, the jury returned with a $4 million verdict (which was the amount requested in closing).
Type of action: Medical Malpractice
Injuries alleged: Transected femoral nerve; permanent and complete femoral neuropathy; permanent left quadriceps paralysis
Name of case: Xavier A. Mickens v. G. Vincent Dalton, M.D., and OrthoVirginia Inc.
Court: Richmond City Circuit Court
Case no.: CL17-125
Tried before: Jury
Name of judge: Judge Gregory L. Rupe
Date resolved: Oct. 26, 2018
Special damages: $240,000 in past medical bills and approximately $250,000 future life care plan
Verdict or settlement: Verdict
Attorneys for plaintiff: R. Lee Livingston and Les S. Bowers, Charlottesville
Defendant’s experts: Joseph Moskal (Roanoke) and A. Brion Gardner (Manassas); William Conrad (Richmond, causation only)
Insurance carrier: The Doctors’ Company