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Jury: Orthopedic surgeon did not violate standard of care — Defense verdict

Virginia Lawyers Weekly//January 16, 2023

Jury: Orthopedic surgeon did not violate standard of care — Defense verdict

Virginia Lawyers Weekly//January 16, 2023

Type of action: Medical malpractice

Injuries alleged: Delay in diagnosis of a deep wound infection in the joint and bone of left shoulder following rotator cuff surgery


Name of case: Smith v. Nielsen, DO

Court: Albemarle County Circuit Court

Case no.: CL21-698

Tried before: Jury

Name of judge or mediator: Judge Claude V. Worrell Jr.

Date resolved: 9/15/2022

Demand: $1,700,000

Verdict or settlement: Verdict


Amount: $0 (defense)

Attorneys for defendant (and city): James D. Mayson and Tate Love, Staunton

Description of case: The plaintiff was involved in a motor vehicle accident on Jan. 20, 2017. He was referred to the defendant orthopedic surgeon for evaluation of a left shoulder rotator cuff tear. After conservative measures were instituted, including physical therapy and a steroid injection which did not relieve plaintiff’s pain, mobility and strength issues, an MRI confirmed a complete rotator cuff tear in the left shoulder. Surgery was performed on Aug. 2, 2017, without complication.

The plaintiff was seen by the defendant orthopedic surgeon on four postoperative visits between Aug. 14 and Oct. 23, 2017. The defendant considered infection as part of his differential diagnosis and ruled out infection in the shoulder on each visit.

On Oct. 2, 2017, plaintiff’s physical therapist called the defendant with concern about a possible infection at the lateral incision site. The defendant saw the plaintiff the next day, evaluated the shoulder and found no evidence of infection. There was no drainage, pus, the site was not warm to the touch and the plaintiff had no history of fever. Since the plaintiff was convinced he had an infection, the defendant, as a precaution, put him on Keflex, an oral antibiotic for a 10-day course.

On Oct. 8, 2017, the plaintiff presented to the Martha Jefferson Hospital Emergency Room with some clear fluid coming from the lateral incision site. The fluid was cultured. It grew no bacteria and therefore it was concluded the shoulder was not infected.

On Oct. 23, 2017, the last visit the plaintiff chose to return to the defendant, he claimed his pain was worse and again expressed a concern over infection in the shoulder. The defendant again examined the plaintiff with infection at the top of his differential diagnosis. There was no evidence of drainage, pus, nor warmth at the site and plaintiff again had no history of fever. The defendant ruled out infection during this visit. Since the plaintiff continued to have pain, the defendant considered a mechanical cause for the pain. He offered plaintiff an MRI to determine whether some of the hardware placed during the surgery had moved which was causing the pain. Plaintiff voluntarily stopped care with the defendant after this visit.

On Nov. 8, 2017, the plaintiff presented to his primary care provider with a new inflamed area in his chest. The PCP unroofed the area with a needle and took a soft tissue culture. The culture grew no bacteria. The PCP diagnosed the plaintiff with a slow healing shoulder status post rotator cuff repair, cause unclear.

On Nov. 14, 2017, the plaintiff presented to the University of Virginia Medical Center and was diagnosed with a deep wound infection in the joint and in the humerus bone of the left shoulder. He underwent surgery eight days later to remove the components and to place antibiotic spacers. The plaintiff underwent a second surgery to replace the hardware removed during the first surgery.

Plaintiff’s experts alleged the defendant violated the standard of care by failing to recognize, diagnose and treat an infection they contend was present during the four postoperative visits. They also claimed it was a violation of the standard of care to have given the Keflex without a diagnosis of infection. They claim the Keflex suppressed the infection that was later found in November.

Defense experts argued the history coupled with the clinical examinations during the four postoperative visits did not suggest the plaintiff had or was developing an infection that would have required the defendant to do anything differently. Additionally, they rebutted plaintiff’s experts that the Keflex suppressed an infection. Since the last dose of the Keflex was taken 10 days before the last postoperative visit to the defendant, it could not have suppressed an infection. If the plaintiff had an infection, it would have been apparent during the last visit to the defendant.

The jury returned a defense verdict within 40 minutes.

Defense counsel James D. Mayson provided case information.


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