Delayed diagnosis of infection led to permanent knee fusion — $3M verdict

Type of action: Medical malpractice

Injuries alleged: Osteomyelitis causing permanent knee fusion

Court: Danville Circuit Court

Case no.: CL19-485

Name of judge or mediator: Judge James J. Reynolds

Date resolved: 2/16/2023

Special damages: $325,000

Demand: $1,750,000

Verdict or settlement: Verdict

Amount: $3,000,000

Attorneys for defendant: Les Bowers, Charlottesville and Anthony M. “Tony” Russell, Roanoke

Description of case: Plaintiff, age 63, fractured his kneecap and tore his patellar tendon on Aug. 1, 2018, when his vehicle came out of gear and rolled backwards. He went to the emergency room and was referred to defendant’s orthopedic surgeon. As this was a rather routine repair, defendant’s orthopedic surgeon scheduled the plaintiff for surgery in eight days. Plaintiff’s repair surgery on Aug. 8, 2018, was uneventful. However, on Aug. 15, plaintiff’s knee looked red, swollen and warm to the touch, with significant pain. By Aug. 17, the redness, swelling, warmth and pain had all increased, and there was drainage from the knee, all of which indicated the presence of a joint infection. Defendant’s orthopedic surgeon evaluated the plaintiff and prescribed Bactrim, an antibiotic that is effective only for a superficial wound infection. Four days later, the symptoms substantially worsened.

After the plaintiff went to the emergency room, defendant’s orthopedic surgeon was called, and he took the plaintiff back to the operating room. Though defendant’s orthopedic surgeon suspected a potential joint infection, he only did a superficial incision and drainage. During that procedure, he found gross purulence in the superficial tissues, but he never inspected or tested the joint space even though he and his expert witnesses acknowledged that the joint space was permeable to an infection and plaintiff was at increased risk of a joint infection for a variety of other reasons. Defendant’s orthopedic surgeon cultured the pus from the superficial tissues, and it returned positive for staph aureus (MSSA). Though the plaintiff had essentially all the hallmark symptoms of a joint infection and had numerous risk factors predisposing him for a joint infection, defendant’s orthopedic surgeon did not obtain laboratory studies that could indicate a joint infection, perform the “gold standard” test of aspirating fluid from the joint and culturing it, nor open the knee joint to drain it of any infection.

After the procedure, the patient was put on IV antibiotics. However, the orthopedic surgeon unilaterally discontinued the IV antibiotics at discharge three days later and restarted oral Bactrim. He admitted that Bactrim was not effective for treatment of a joint infection, and that if he had intended to treat a joint infection, he would have ordered different antibiotics. Despite never running any test to definitively rule in or rule out a joint infection, the orthopedic surgeon documented that he did not believe the patient had a joint infection.

Plaintiff improved somewhat, but he began to worsen again after his antibiotics ran out. His knee wound opened and began draining serous fluid, and the redness, swelling, and warmth returned. On Sept. 28, 2018, defendant’s orthopedic surgeon did the same thing and hoped for a different result, namely he took the plaintiff back to the operating room and did a superficial incision and drainage. Again, he did not open the joint to drain it, did not aspirate any fluid for culture, and did not obtain any laboratory studies. He placed a wound vac that would stay in place for over two months and discharged the plaintiff the same day without any antibiotics.

A few days later, the plaintiff’s nurses called due to concern about an infection and requested that he be seen or prescribed antibiotics. Neither occurred, and instead he was referred to physical therapy. Two days later, the plaintiff returned to the defendant, at which point the defendant’s orthopedic surgeon documented that the family was concerned about infection. Still, the defendant’s orthopedic surgeon gave no antibiotics and did not test the joint fluid. Over the course of October 2018, the knee wound had a “fist-sized hole in it.” By the end of October, tendons were visible through the wound and the surgeon said he might need to consult plastic surgery. Even still, there was no test for, diagnosis of, or treatment for joint infection. By the end of November 2018, the wound was spitting out sutures from the patellar tendon repair. Despite plaintiff’s condition, defendant’s orthopedic surgeon was not concerned for a joint infection, nor a failure of the patellar tendon.

Plaintiff continued to suffer in December 2018 with pain and stiffness, while the superficial wound did begin to close. However, by mid-January 2019 the knee became red, hot, swollen, painful and was draining fluid, just like it had been in August 2018. The plaintiff’s primary care provider prescribed more Bactrim because that is what the defendant’s orthopedic surgeon had been giving and sent him back to defendant’s orthopedic surgeon for further evaluation. Again, defendant’s orthopedic surgeon did nothing to test for or treat a joint infection. Plaintiff returned to defendant’s orthopedic surgeon again on Feb. 1, 2019, with the same symptoms he had been having for more than five months. Defendant’s orthopedic surgeon finally ordered an MRI and laboratory studies but did not aspirate any fluid from the knee. The laboratory studies came back “off the charts,” and the MRI revealed a likely septic knee, with osteomyelitis of the femur and tibia.

After the MRI results returned, defendant’s orthopedic surgeon referred plaintiff to Carilion, but his family managed to get him in to be seen the next day. At Carilion, he was immediately diagnosed with a chronic, long-standing severe joint infection and told they would have to amputate above the knee or perform a knee fusion. During the surgery at Carilion, plaintiff had his patella, patellar tendon, and diseased portions of femur and tibia cut out. The Carilion doctor also took cultures from inside the joint, which came back positive for MSSA — the same organism that the defendant‘s orthopedic surgeon had cultured from the superficial tissues over five months prior.

The Carilion doctor also began the process of external fixation for a knee fusion. Plaintiff underwent three additional procedures at Carilion to revise the external fixator, and then to remove it seven months later. He currently can only ambulate with a rollator while essentially “dragging” his fused right leg.

Suit was filed in 2019, and the trial was continued three times due to COVID. As the case matured, plaintiff made reasonable settlement overtures. In response, defendant’s insurance carrier, CURI, refused to attend a court-ordered mediation and never made an offer. This “no-offer” position continued even after the defendant’s orthopedic surgeon retired early due to a progressive, lethal medical condition that significantly limited his ability to participate in the trial.

At trial, plaintiff’s counsel used numerous photographs of plaintiff’s knee to demonstrate to the jury that his knee was infected “until proven otherwise.” These photographs were taken by plaintiff’s daughter and healthcare providers over the course of the six months that defendant’s orthopedic surgeon treated the plaintiff. Plaintiff’s two orthopedic experts, and one infectious disease expert, concluded that plaintiff had a MSSA infection of his joint from defendant’s original repair surgery and that it was clinically apparent. They testified that joint infection cannot be ruled out clinically and that when joint infection is suspected, aspiration of synovial fluid is mandatory. They testified that the defendant’s orthopedic surgeon violated the standard of care at every encounter from Aug. 17, 2018, through Feb. 6, 2019. The defense argued that although its orthopedic surgeon documented that he suspected joint infection, there were insufficient indications to aspirate fluid from the joint, that a joint infection could be sufficiently ruled out with clinical examination alone, and that while there was “possibly” a joint infection in August 2018, it did not become “apparent” until January 2019.

After about three hours of deliberations, the jury returned a verdict for the plaintiff in the amount of $3 million. CURI agreed to pay the $2.35 million medical malpractice cap prior to post-trial motions.

Plaintiff’s counsel Les Bowers provided case information.

[023-T-033]