Allegation:
Plaintiff Alleged Standard of Care Required OTC to Contact Supervising Physician Immediately Upon Hearing Complaints.
The Case:
A 40 YOM (5'11", 213 lbs.) presented to the defendant orthopaedic clinic following an injury to his left knee. The orthopaedic surgeon and nurse practitioner (NP) examined the patient and diagnosed a defect at the anterior patella; the impression they had was left knee patellar tendon rupture. The surgeon and NP discussed treatment options including surgery along with the risks, complications, and recovery. The informed consent discussion included DVT risk associated with lower extremity procedures, but not the elevated risk associated with a patellar tendon repair.
The patient opted for surgery and underwent an open repair of the left patellar tendon rupture. He did well in recovery. Three days post-op, the patient spoke with the NP since he was running low on oxycodone. She refilled the prescription but instructed him to wean down from taking 1-2 tablets every 4-6 hours PRN.
Five days post-op, the patient spoke with a medical assistant to clarify his post-op activity instructions. He attended two and four-week follow-up evaluations with his NP. She reported he was doing well; range of motion was deferred. The left calf was soft and non-tender, and neurovascularly intact; however, it was noted his quad was quite atrophied. Gentle isometric exercises and ankle rotation were recommended. The patient remained in a brace. Slight lateral pain was localized over the proximal fibula. He was taking Advil® intermittently, and was advised to be more diligent with his exercises.
Six days later, the patient called the clinic about left foot pain. His surgeon was not in and he was routed to the certified orthopaedic technician (OTC). The OTC’s chart note, dictated the next day, stated the patient reported throbbing pain when standing. The patient was approximately four-and-a-half weeks out from a patellar tendon repair. He had looked online and felt confident his condition was not DVT, particularly since he was regularly taking anti-inflammatories, moving about, working, and doing activities. The OTC reassured him that this was a correct assumption, went over the reasoning for the pain, and discussed his concerns over the symptoms. The patient was satisfied with the outcome of their discussion and was instructed to call back if he had further concerns.
Four days following the conversation with the OTC, the patient had a heart attack at home and was not revived. An autopsy revealed acute pulmonary embolism with pulmonary infarct, pulmonary edema, DVT to the left popliteal and posterior tibial veins, hypercoagulability, cardiomegaly with left ventricular hypertrophy, and hepatosplenomegaly.
The OTC later testified that during the call, the patient said he felt a lump near the incision site of the anterior leg, and not the posterior calf as the plaintiff alleged when the suit was filed. She thought the leg pain was from the brace. The OTC stated that once the patient mentioned DVT, she had him squeeze his calf and move his toes up and did not find any problems. She offered an ultrasound, but he declined; she told him to call back if he changed his mind. She only entered a brief note about the call, planning to add details later. She told the surgeon’s nurse about the call the day after, in case the patient called back regarding an ultrasound.
The plaintiff’s expert orthopaedic surgeon and cardiothoracic vascular surgeon stated the standard of care required the tech to contact a supervising physician immediately upon hearing the patient’s complaints. Regardless of her having offered an ultrasound and the patient’s subsequent acceptance or refusal, the tech’s action was insufficient. The experts were critical of the lack of useful information in the tech’s note. The patient would have had a chance of successful anticoagulant treatment had the DVT been diagnosed. If a surgeon had gotten on the call, they would have convinced the patient to have the ultrasound and an exam.
The defense orthopaedic surgical expert testified the surgeon met the standard of care regarding the procedure. The level of suspicion for DVT at four-and-a-half weeks would be low. With respect to the tech’s note, he would want to know more about the pain complaints. The OTC defense expert stated that the standard of care was met if the technician offered the patient an opportunity to have an ultrasound, per her testimony as opposed to her note. Standard of care support for the OTC technician was weak. Her sparse note and the contrast between it and her deposition testimony undermined her credibility.
Verdict:
Due to the OTC’s failure to notify a physician of a patient’s call, inadequate telephone documentation, and lack of telephone guidelines for the practice, the case resulted in a reasonable settlement on behalf of the orthopaedic clinic. The surgeon was dismissed from the lawsuit.
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