Cases reprinted with permission from Medical Malpractice Verdicts, Settlements and Experts, Lewis Laska, Editor, (800) 298-6288.
Cancer Patient Urged to Sue By Later Provider
A 52-year-old woman had a long history of abdominal pain and adhesions. In September 2005, after five years of adhesion-type abdominal pain, she underwent removal of her ovaries and fallopian tubes. A prior laparoscopic adhesiolysis had failed to resolve the pain. After the surgery, a tissue sample was sent to Dr. B., who diagnosed a “benign serous papillary tumor with psammoma bodies.”
In early 2007, the abdominal pain returned. The woman’s primary care physician immediately sent her for a series of MRIs over the next eight months. These revealed very minor changes in the lower pelvis. Ultimately, another diagnostic laparoscopy was performed, which revealed primary peritoneal cancer.
Staging surgery was performed by Dr. G., who testified at trial that she found cancer “everywhere” in the peritoneal cavity. After personally comparing pathology slides from the 2008 surgery with the tissue from the 2005 surgery, Dr. G. concluded that the tissue was virtually identical and the patient had cancer in 2005.
Dr. G. gave the woman a copy of Dr. B.’s 2005 pathology report with the advice to see a lawyer. Dr. G., however, did not provide a copy of the pathology report she had received from a gynecologic pathology expert, who had reviewed both tissue samples and concluded that Dr. B.’s diagnosis was reasonable.
The patient was ultimately diagnosed with low-grade primary peritoneal carcinoma, which was thought to have originated in her ovaries and fallopian tubes. She claimed that Dr. B.’s failure to diagnose cancer or borderline cancer in 2005 reduced her chance of survival by almost 70%. The defendant claimed that an earlier diagnosis would not have changed the plaintiff’s prognosis.
OUTCOME
A defense verdict was returned.
COMMENT
One of the most common reasons a patient decides to file a medical malpractice lawsuit is because a later treating professional recommends it. In this case, the staging surgeon reviewed the prior slides and concluded that the cancer should have been discovered at the time of the original surgery. It does not appear that she was a pathologist.
What is puzzling is why this provider would recommend that the patient see a lawyer, while withholding an expert pathology opinion stating that the original pathologist’s findings were reasonable. She did neither the patient nor her lawyer a favor. I am not surprised by the defense verdict in this case. —JP
Escalating Postsurgical Pain Not Addressed
At age 19, an Illinois woman underwent radical open anterior and posterior synovectomy for a rare knee disease at the defendant hospital. Examination immediately after surgery revealed no complications and a normal neurovascular status. That night and into the next morning, however, the patient repeatedly complained of pain below her knee and in her foot, and her neurovascular status was abnormal.
She was given repeated doses of pain medication with increasing dosage. Two resident physicians were contacted by the nursing staff, but neither came to the hospital to examine the patient. The attending physician was never contacted.
Early the next morning, the patient was examined by the attending physician, who made a diagnosis of compartment syndrome and performed a fasciotomy. The patient required several debridements to remove necrotic muscle and tissue below her knee. She lost about 90% of the muscle in the affected leg and has foot drop and severe nerve dysfunction.
The plaintiff claimed that the nurses and resident physicians failed to recognize her condition and communicate it to the attending physician. According to the plaintiff, the delay in diagnosis and treatment of compartment syndrome led to extensive muscle and tissue death.
The defendants argued that the plaintiff did not complain on the night of the surgery as she claimed, and that compartment syndrome was diagnosed in a timely manner. The defendants claimed that fasciotomy performed by the attending physician was too conservative, permitting compartment syndrome to recur or persist.
OUTCOME
A $14,891,123.02 verdict was returned.
COMMENT
Many clinical situations can lead to compartment syndrome, including sources inside the limb (fractures) or outside the limb (burns), as well as patient factors in the setting of seemingly trivial trauma (bleeding diathesis/anticoagulation therapy). In any practice setting where limbs are crushed, fractured, surgically manipulated, splinted, burned, or compressed, compartment syndrome may occur. Clinicians working in ambulatory or surgical settings should routinely alert patients to the possibility of this complication, and they must remain vigilant for patient reports of intense or escalating limb pain.
In a typical case of compartment syndrome, blood accumulates in a closed space (compartment) of an extremity, raising pressure sufficient to cause ischemia, followed by nerve damage and muscle necrosis. The classic diagnostic findings include pain, pallor, “pulselessness,” and paralysis (the “four Ps”). Disproportional pain (at times refractory to narcotic analgesia) is the earliest indicator of compartment syndrome. Pain is often described as deep, unremitting, and poorly localized; stretching of the muscle group within the compartment also worsens pain.
Malpractice cases involving missed compartment syndrome often result in a substantial verdict. This is so because patients are often young, and limb damage is severe—possibly including muscle loss, paralysis, or debilitating ischemic contracture. Fasciotomy is a relatively straightforward, curative treatment, but by the time it is performed, substantial damage may have been done.
To make matters worse, many causes of compartment syndrome are iatrogenic (eg, casting, surgery, instrumentation of a limb in an anticoagulated patient), which can compound the jury’s wrath. Lastly, the plaintiff’s lawyer can paint a vivid picture in which the limb is filling, time is ticking, the patient is screaming, damage is mounting—yet nothing is done. The jury is easily able to understand the elevating pressure in the limb, see the connection between the pressure and the damage, and recognize that a surgical release would have cured the problem. So guided, the jury can become incensed that the limb was allowed to “implode,” seriously degrading a patient’s life—as exemplified by the substantial verdict in favor of this unfortunate 19-year-old woman.
In any injury or intervention involving a limb, instruct the patient to return in the event of intense escalating pain. Exercise caution when the demand for analgesics seems high, escalating, or unduly urgent, or when pain is difficult to control. If compartment syndrome is suspected, compartment pressure measurements should be obtained promptly. —DML