Virginia Lawyers Weekly VA Lawyers Weekly
Type of action: Medical malpractice
Injuries alleged: Below the knee amputation
Date resolved: 11/15/2022
Name of judge or mediator: Judge Michael C. Allen, Ret.
Verdict or settlement: Settlement
Pierce
Amount: $900,000
Attorney for plaintiff: David J. Pierce, Virginia Beach
Description of case: Plaintiff, a 61-year-old male, presented to his primary care physician with complaints of left great toe pain and a toenail that had fallen off. The PCP referred him for a vascular evaluation of his left leg. The patient presented to a vascular surgery practice for evaluation five days later where he was seen by a nurse practitioner. He reported pain in the left lower leg and foot which was worse at night and better when the leg was in a dependent position. It was noted that he was a diabetic and had an ulcer of the great toe with necrosis of muscle. His bilateral lower extremities were warm with no palpable pedal or popliteal pulses. The left ankle/foot was noted with 1+ edema. It was further noted that the patient had left great toe gangrene that was positive for foul odor and purulent drainage. X-ray of the left foot demonstrated soft tissue swelling and subcutaneous air in the first digit consistent with infection and possible early osteomyelitis. The nurse practitioner’s plan, which was approved by her supervising physician, included “angiogram as soon as feasible.” For reasons that could not be explained, the angiogram was scheduled to be performed 29 days later.
Six days prior to the scheduled angiogram, the patient’s niece became concerned about the condition of her uncle’s left foot and thus took him to a hospital emergency department. Upon presentation, the foot was noted to be gangrenous from the mid-foot to the toes. The patient was diagnosed with ischemic necrosis of the foot and sepsis. An orthopedic consult found necrotizing soft tissue infection to the left lower extremity with subcutaneous erythema tracking up the distal tibia. The patient underwent surgical debridement and a below the knee amputation the following day to prevent the further spread of a potentially life-threatening infection.
Plaintiff’s experts opined that upon initial presentation, the vascular practitioners should have understood that the patient was likely suffering from peripheral vascular disease as well as an infection that had the potential to spread rapidly. This condition required urgent evaluation and treatment of the left lower extremity including an angiogram and treatment of the suspected infection. The practitioners should have further understood that, as a diabetic, the patient was at a heightened risk for vascular compromise of his lower extremities. They should have further understood that peripheral vascular disease may predispose a patient to poor wound healing which could lead to a serious and limb threatening infection. The vascular practitioners negligently failed to evaluate and treat the patient in a timely manner.
Plaintiff’s vascular surgery expert opined that while the patient would have needed the amputation of his toe and possibly a transmetatarsal amputation of all toes and part of his foot, he would not have suffered the below the knee amputation. Plaintiff’s forensic pathologist reviewed the surgical pathology tissue slides from the amputation. He opined that microscopic examination of the slides demonstrated open channels in the vessels in the left lower extremity that were not occluded by atherosclerosis or clotting. As such, the pathologist opined that the patient had distal circulation just prior to his amputation thus supporting the vascular surgeon’s opinion that the left lower extremity was salvageable given timely treatment. The pathologist prepared a series of photomicrograph exhibits to explain and support his opinions.
Defendant’s experts and treating physicians opined that upon his initial presentation to the vascular practice, the plaintiff’s gangrene was isolated to his left great toe and did not show any signs of spreading or an ongoing infection and thus did not require urgent treatment. They also argued that the plaintiff was told to return if the condition of his foot worsened and he clearly failed to do so. Additionally, defendants opined that the plaintiff was suffering from extensive peripheral vascular disease of his left lower extremity and that he would have required a below the knee amputation regardless of when the angiogram was performed. They further contended that given his numerous and longstanding comorbid conditions including diabetes mellitus, type 2, requiring insulin, stage 3 chronic kidney disease, severe peripheral vascular disease, neuropathy, proliferative diabetic retinopathy, hypertension and hyperkalemia, coupled with noncompliance with his physician’s recommended treatment, he had a life expectancy of less than two years.
The plaintiff was disabled from a prior back injury and had not worked for several years. As such, there was no loss of income claim. Following the completion of all expert depositions, this case was resolved at mediation a few weeks prior to trial.
Plaintiff’s law firm provided case information.
[023-T-021]
