By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
News: A 19-year-old man underwent emergency leg surgery after a sports injury. The patient was discharged shortly after the surgery despite reporting extreme pain. A few days later, the patient returned with continued reports of extreme pain and was diagnosed with compartment syndrome. The patient suffered permanent leg injury, disability, and disfigurement, and has undergone more than 20 operations.
The patient filed a malpractice suit, alleging the providers failed to appropriately evaluate, diagnose, and treat him. A jury awarded the patient $111 million.
Background: In 2017, a 19-year-old patient, a citizen of Nepal in the United States on a student visa, suffered a severe fracture of his left leg while playing soccer. The patient was taken by ambulance to a local hospital and underwent emergency surgery performed by an on-call orthopedic surgeon. Through the night and into the following morning, the patient experienced severe pain in his lower left leg, numbness, a burning sensation, and reduced contraction of his muscles. The pain was difficult to control even with medication.
The day after the surgery, the patient was discharged at 5:30 p.m., even though he continued to report extreme pain. The patient returned six days later when his symptoms did not improve. He underwent a second surgery, during which a different physician discovered the patient’s acute compartment syndrome. The patient’s muscles in the anterior compartment of his leg were gray and had no contractility. Since then, the patient has undergone more than 20 additional operations. As a result, the patient’s leg is permanently injured and disfigured.
The patient filed a malpractice suit against the initial care provider’s practice group, alleging a multitude of deviations from the applicable standard of care. Among the negligence alleged was failure to appropriately evaluate the patient’s symptoms, failure to appropriately diagnose and treat the patient’s acute compartment syndrome, and failure to appropriately discharge the patient. Before the injury, the patient was a healthy, active 19-year-old undergraduate student at a university. Because of the care providers’ negligence, he suffered permanent disability and disfigurement. The defendants denied liability and claimed the care provided was in accordance with accepted standards.
Following a week-long trial, a jury found in favor of the patient and awarded him $111 million, consisting of $10 million for past pain, disability, disfigurement, embarrassment, and emotional distress, $493,073.22 in past medical expenses, $100 million in future pain, disability, disfigurement, embarrassment, and emotional distress, and $758,486 in future medical expenses.
What this means to you: In this matter, the principal issue is the physician’s failure to evaluate, diagnose, and treat the patient’s acute compartment syndrome. A failure to diagnose is an unfortunately common form of medical malpractice. If a physician in the same or similar circumstances, with the same information concerning the patient, would have correctly diagnosed a condition or illness, then a failure to do so may constitute a deviation from the applicable standards of care.
In this case, the patient repeatedly reported symptoms that should have prompted concerns from the treating care providers. These symptoms included intractable pain, numbness, a burning sensation, and reduced contraction. The patient’s care providers were informed of these symptoms, yet took no further action to determine whether further treatment was necessary following the emergency surgery for the fracture. Compartment syndrome occurs most often in the lower leg, and acute compartment syndrome can arise from a significant injury. Given the patient’s injury and reports, the care providers should have performed further evaluation — and the jury determined the providers’ failure constituted malpractice.
Providers should note it is important not only to listen to a patient’s reports, but to follow up and act. It was clear the patient did, in fact, tell the providers about his complaints and pain, yet nothing was happened. Moreover, not only did they not act, but the care providers discharged the patient the day after his surgery, even though the reports of pain and numbness continued throughout the night and into the next morning. The care providers could and should have performed additional diagnostic testing to determine if complications occurred or if the patient was suffering from acute compartment syndrome.
This is an all-too-common occurrence that risk managers and defense attorneys see more often than they can count. Specialists are particularly susceptible to these lawsuits because they tend to put injuries and the standard treatments in a box and close the lid. Once again, we find the patient’s complaints, symptoms, presentation, and anything else that should raise giant red flags, are ignored. Postoperative care is based on the patient’s condition after surgery. It is not a preprinted order set that is clicked in the EMR. While most of these orthopedic cases will do well postoperatively, and the discharge takes place as planned, it is not always the case. This patient did not fit into the prescribed box. Pain was excessive, especially for a younger, healthy athlete. Greater swelling than usual was seen, and the accompanying numbness pointed toward impingement of a nerve, as can occur when one sits in the same position for too long. Something causes that — and that something, if not corrected, eventually causes damage, usually through loss of the blood supply to the nerve, muscle, and surrounding tissue. Wait long enough, and these vital parts of the body die. The patient’s leg, probably cold and discolored by the time he left the hospital, was unlikely to recover.
Compartment syndrome is not rare. It is especially risky with traumatic injuries due to the body’s extreme reaction. The surgery itself adds to the trauma by cutting through healthy tissue to reach the injury for treatment. The area swells considerably, and the fluid build-up causes pressure that can cut off circulation to the area. This is fixable if noticed in time, but providers must be aware and watch for the issue.
Beyond the underlying actions in this case, an important lesson can be learned from the significant verdict, and the breakdown of what constituted that verdict. Of the $111 million awarded, most was for the patient’s pain, disability, disfigurement, embarrassment, and emotional distress: $10 million for past, and $100 million for future. The patient’s medical expenses, both past and future, only represented approximately $1.25 million. While $1.25 million is still sizeable, it is vastly outweighed by the $110 million that the patient was awarded on the more “flexible” form of damages from pain and suffering. Juries often have broad discretion concerning the amounts of these types of damages. A different jury composed of different individuals could have awarded half as much, or a quarter as much.
Medical malpractice litigation is inherently unpredictable, partly because of jury’s discretion. Regardless of the strength or weaknesses of a provider’s case, it is important to evaluate and pursue settlement discussions on a parallel track while defending the litigation. There are many different potential paths to settlement, whether through formal mediation supported by a third-party neutral mediator, or through direct discussions between counsel for the parties. In this case, it is likely the care providers could have settled the matter for far less than $111 million and kept their fate in their own hands rather than placing it in the hands of a jury.
Compensating the patient for all his past and future medical expenses would have only been $1.25 million; even adding 10 times that amount for pain and suffering would have represented a total settlement of less than $14 million. A significant settlement offer that would have made the patient whole from his medical bills while also providing substantial compensation for pain and suffering likely could have prevented this nine-figure adverse verdict and the inevitable negative publicity that accompanies such a sizeable sum. Physicians and care providers should consult with counsel about options for alternative dispute resolution to prevent the very real potential of runaway or overzealous juries that award hundreds of millions in damages.
REFERENCE
- Decided May 17, 2022, in the United States District Court, District of Minnesota, Case Number 19-cv-2568 (TNL).
In this matter, the principal issue is the physician’s failure to evaluate, diagnose, and treat the patient’s acute compartment syndrome. A failure to diagnose is an unfortunately common form of medical malpractice.
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