Commentary:
The jury unanimously agreed the defendant orthopaedic surgeon met the standard of care, as the contributing behaviors of the plaintiff led to his post-operative infection and subsequent surgeries.
The Case:
The defendant orthopaedic surgeon saw the plaintiff, a 41-YOM (5’11”, 170 lbs.), in the ER for a comminuted, moderately displaced, angulated fracture of the left tibia-fibula. Lab work for the plaintiff showed glucose 120 (64-110), WBC 12.9 (4.6-10.2), and ANC 9.1 (2-6.9). The plaintiff reported smoking one to two packs of cigarettes per day. The ER physician noted no abrasions, lacerations, swelling, tenderness, or bony deformity. The plaintiff consented to an open reduction and internal fixation (ORIF) procedure, and acknowledged the possibility of infection through the informed consent process.
The defendant orthopaedic surgeon performed a 2.25-hour ORIF with elevation of distressed left lateral tibial plateau fracture. The plaintiff was given one gram of Kefzol® before surgery. Post-operatively, the surgeon noted the plaintiff’s leg was very tight and swollen and was close to compartment syndrome. The fascia was closed over the bone, but the skin was not closed due to swelling. As a result, the anterior lateral compartment was exposed.
The physician placed a wound VAC and administered Kefzol IV for two days. The plaintiff was discharged with a walker six days post-op with instructions to follow up with an orthopaedist in six days. An appointment was made for the plaintiff with a new orthopaedist who was located closer to the plaintiff’s home. Medications were baby aspirin daily, Lorcet®, Valium®, Duragesic® patch 75 mg, and Ambien®.
One day post-discharge, the plaintiff received wound VAC care from a visiting nurse. The nurse noted heavy smoking and provided education on wound care. The nurse saw the plaintiff every other day; an orthopaedic surgeon and visiting RN saw him five days-post discharge and noted no signs of infection.
The plaintiff saw his primary care physician (PCP) and an orthopaedist eight days post-discharge with no signs of infection. He returned to the orthopaedist four days later. His capillary refill was delayed four seconds distally, and his wound VAC area had mild erythema and tenderness at the wound edges. No drainage or discharge was noted. The wound VAC was changed. The plaintiff was advised to quit smoking and given prescriptions that included Vicodin®.
Three weeks after the ORIF, a visiting LPN noted an increased temperature, signs of edema, and serous drainage. She instructed the plaintiff to report to the ER but he refused to go until 48 hours later.
The plaintiff presented to the ER with evidence of infection present for the past three days. The ER started IV Vancomycin and Zosyn® for acute cellulitis and Dilaudid® for pain. Labs revealed WBC 16.6, RBC 3.7 (4.3-5.9), Hgb 11.2 (12.9-18), and HCT 33.1 (37.6-52). Venous duplex found an acute DVT in the left peroneal vein and the providers administered Lovenox®. A nurse removed three Duragesic patches on the plaintiff’s back. At the request of the plaintiff he was transferred to another hospital.
An orthopaedic surgeon removed the infected hardware and placed an external fixation. The surgeon noted significant pus discharge from the leg during the procedure. The plaintiff had anemia and transient elevation of liver enzymes. He received IV antibiotics and Lovenox, and upon discharge, his condition was slightly improved.
The plaintiff resumed wound care and saw orthopaedic providers for the next three months. He returned to weight-bearing status. His providers also counseled him to stop smoking. Over the next several months, the plaintiff required multiple orthopaedic procedures related to infection and nonunion issues. Notes indicate noncompliance with physical therapy, a third DUI, and alcohol and pain medication abuse.
The plaintiff filed a lawsuit, alleging failure to properly treat a tib-fib fracture. His orthopaedic expert said the defendant should have delayed surgery to allow swelling to decrease on the plaintiff’s leg and avoid an open wound. The expert added that the defendant breached the standard of care by failing to surgically cover the site. The plaintiff’s infectious disease expert stated the infection likely began in the operating room during the initial surgery.
The defendant’s two expert orthopaedic surgeons stated that what occurred after the defendant’s care was not attributable to the defendant orthopaedic surgeon. The experts testified that the open incision was acceptable, and that surgery was appropriate despite compartment syndrome developing. The experts said that the plaintiff was properly instructed on the use of the wound VAC care, antibiotics, and follow-up evaluations. The infection worsened, they said, when the plaintiff failed to go to the ER after being instructed to do so, and when he walked during a time when he supposed to be non-weight bearing. His overuse of pain medication, continued smoking, and alcohol abuse greatly slowed his healing and contributed to his complications. An infectious disease expert testified infection is a well-known complication and that the possibility was addressed in informed consent. The defendant physician also provided proper pre- and post-op antibiotics.
After deliberation, the jury returned a unanimous no cause verdict in favor of the defendant.
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