Basch & Keegan recently settled a medical malpractice case for a poorly constructed total knee replacement. The plaintiff is a 64-year-old man from Warren County who had a history of knee problems. He finally decided to get a total knee replacement after years of conservative treatment measures failed. The surgery was a complete failure because the plaintiff’s orthopedic surgeon deviated from accepted standards of care by “overstuffing” the knee. John A. DeGasperis handled this case and recovered $500,000.
According to John, this was a challenging case because “bad outcomes do not necessarily result from medical negligence.” In other words, just because the surgery did not result in a good outcome, it does not automatically mean the doctor was negligent.
Medical malpractice occurs when “a health care provider renders treatment that deviates from the accepted standard of practice in the medical community.” Medical malpractice cases must be commenced by an accompanying opinion which states there is merit to the claim. A major obstacle in medical malpractice claims is proving there was an actual deviation from standard care because doctors give their opinions as to what procedures or treatment should have been done based on a given set of facts surrounding a person’s symptoms. Since there are rarely clear-cut rules about what types of procedures or treatments should be given, proving a deviation from the standard can be difficult.
In this case involving a total knee replacement, the surgeon used the wrong size prosthetic implant. Knee implants come in different sizes to accommodate various body sizes, types, and needs. The doctor who replaced the plaintiff’s knee incorrectly sized one of the four prosthetic pieces that are utilized during a total knee replacement. Those four pieces include the femoral component, tibial component, patellar component, and a plastic insert made of non-wearable plastic. During surgery, the surgeon measured the femur bone at a size six. She cut the bone with a size six cutting block, but she subsequently implanted a size seven femoral component. This negligent act resulted in a large gap between the anterior side of the femoral component and the femur bone. The excessively large prosthetic caused the plaintiff to have considerable pain, as well as restricted range of motion of the knee joint.
When asked about the mid-sizing of the knee, the doctor claimed that the operative report contained a typographical error. This was a huge factor in our case against the doctor. The doctor’s testimony was undermined by the plaintiff’s need for a revision surgery performed by a second surgeon within six months of the original knee replacement. The diagnosis that required a revision surgery included “overstuffed left knee.”
The plaintiff was in terrible pain after the surgery with limited range of motion in his knee as compared to before the surgery. The pain he experienced after the knee replacement surgery was a new pain profile, different from the pain he experienced with an arthritic knee. The pain was due, in part, to a Saphenous nerve injury sustained during the original knee replacement surgery. This too was the result of negligence.
Our client sought out a second opinion and was diagnosed with an overstuffed knee with nerve damage. The second surgeon revised the knee replacement with a smaller prosthetic. Our client’s range of motion improved, but the pain from the nerve damage persisted.
When this client came to Basch & Keegan seeking advice he could hardly walk. The revision surgery had not occurred yet. “I remember seeing how much pain he was in. I thought to myself, ‘something went wrong during that surgery.’” John did not waste time. He obtained the plaintiff’s medical records and diagnostic studies. He reviewed the records, including the operative report and hospital records. It was during the initial investigation when John realized the surgeon screwed up. “The operative report indicated she measured a six, but she put in a seven. I cross-referenced hospital’s prosthetic log, which confirmed she used a size seven.”
John next consulted with an experienced orthopedic surgeon. The surgeon confirmed there could be reasons for measuring one size and implanting a different size, but john’s expert was confident that in this case the surgeon acted negligently. After building his case, John pushed the case to trial. Just one week before the trial was set to commence, the doctor’s medical liability insurance company offered to settle for $500,000. John really wanted to go to trial; however, the client wanted to resolve the case at $500,000.
A settlement of $500,000 is a win for a medical malpractice case. The medical insurance companies will typically not extend settlement offers because this is an admission of negligence on the doctor. The doctor needs to consent to all settlement offers before the medical liability insurance company can extend an offer. This is because doctor’s have the right of consent. Once a doctor has admitted negligence in a medical malpractice case, they are required to report and register their names in the National Practitioner Data Bank. This databank can be accessed by hospitals, health plans, state licensing boards, medical malpractice payers and other health care entities across the country. Furthermore, each state has a medical board website where the public can search health care professionals by name for any legal issues, including medical malpractice lawsuits.
Basch & Keegan has been handling medical malpractice case for nearly forty years. The firm’s lawyers have brought numerous medical malpractice cases too trial, and many more have been settled out of court. Please feel free to call our office for a free consultation if you or a loved one was injured or died as a result of medical malpractice.