Medical Malpractice - Failure to Diagnose - $700,000 Gross Award

$700,000 Gross award reduced by 75% for pre-existing condition under Scafidi - Medical malpractice - Failure to timely diagnose septic arthritis in left knee of patient with long standing history of bilateral knee arthritis - Extensive destruction of cartilage - Plaintiff points to defendant's records showing ability to lead relatively active lifestyle despite prior arthritis.

Middlesex County

This was a medical malpractice action in which the female plaintiff in her mid 60's, who had a 30 year history of bilateral knee arthritis, contended that the defendant orthopedist negligently failed to timely diagnose and treat an infectious process of septic arthritis. The plaintiff contended that as a result, she suffered the destruction of a very significant amount of cartilage in the left knee. The plaintiff maintained that despite the prior difficulties, she had been able to dance, take relatively long walks with her husband and play with her grandchildren. The plaintiff contended that she has been forced to give up dancing and lead a much more sedentary lifestyle. The plaintiff further contended that although bilateral knee replacements would have been indicated irrespective of the infection, the need for the procedure has been significantly accelerated. The plaintiff has not as yet undergone the procedures and indicated that she still hopes to avoid the procedures if possible.

The plaintiff related that on Monday, November 16, 1992, she visited the defendant with a warm and swollen knee and that he aspirated bloody fluid from the knee. The physician advised the plaintiff to return in two weeks. The plaintiff contended that because of a recurrence of the swelling and continued severe pain, she returned the next day and the defendant, who did not again aspirate the knee, gave her a knee immobilizer. The plaintiff contended that on Thursday, she returned with a low grade fever, chills, nausea and vomiting. The defendant sent the fluid obtained during the procedure for a culture and discharged the plaintiff on Sunday before the culture results returned. The plaintiff contended that she had a fever of 100-101 degrees during the several day hospitalization and that the fever was at 102 degrees on the day of discharge. The plaintiff related that on the following Tuesday, she visited the non-party Hospital for Special Surgery in NYC and the evidence disclosed that she was admitted. The plaintiff maintained that the physicians at this institution immediately made a presumptive diagnosis of septic arthritis. The diagnosis was confirmed a short time thereafter upon the return of the Saturday culture taken by the defendant, which was communicated to the physicians at this second hospital.

The plaintiff's expert internist contended that based upon the plaintiff's complaints of feverishness at the first exam, the defendant clearly should have submitted the fluid he aspirated for a culture. The plaintiff's expert physiatrist contended that irrespective of this factor, the defendant should have obtained a culture, contending that such fluid always carries the potential for infection and that such a test was mandated.

The defendant denied that the plaintiff had a fever at this exam, contending that he would have recorded a fever if one was present and further pointing to the intake sheet filled out by the plaintiff which did not contain a mention of fever. The defendant also pointed out that the plaintiff had a history of requiring such aspiration procedures for knee problems over the approximate 30 years and contended that she had no previous history of infection, denying that a culture at this time was mandated by the standard of care.

The plaintiff maintained that when she returned three days later with continued knee swelling, a fever and chills and was hospitalized, the defendant should have immediately submitted a sample for culture, making a presumptive diagnosis of septic arthritis and treat the plaintiff with I.V. broad spectrum antibiotics while awaiting the results of the culture. The plaintiff's experts related that septic arthritis will rapidly cause a destruction of cartilage and maintained that the defendant should have realized that he was faced with an emergent situation. The plaintiff contended that the presence of white blood cells in the knee fluid reflected an inflammatory process which was consistent with infection and should have, together with the other signs and symptoms, including fever, and elevated sedimentation rate and low glucose, which the plaintiff contended would also be consistent with infection, mandated that the defendant commence antibiotic therapy until an infection was ruled out.

The defendant contended that the white cell count in the knee fluid was 17,000 and only mildly elevated, leading away from a diagnosis of infection. The plaintiff contended that while such a white count could well be indicative of a non-infectious process, it did show some inflammation, which together with the other symptoms, mandated further study. The plaintiff also maintained that the absence of a sharply elevated white count is not dispositive and pointed to the literature which reflected that 1/3 of patients with septic arthritis have a white count in the fluid which is less than 50,000. The plaintiff further contended that there was no significant risk to commencing broad based antibiotics at this time and that in view of the risks of delaying antibiotic treatment, the standard of care required such treatment until the return of the culture.

The defendant countered that there was an absence of signs of infection such as purulent drainage, which significantly reduced the chances of infection. The defendant maintained that a patient could build a tolerance to antibiotics or suffer an allergic reaction and that they were not indicated at the time. The plaintiff argued that the absence of purulence was clearly not dispositive and that the risks of early I.V. antibiotic therapy were minimal, especially when compared with the risks of delay.

The plaintiff maintained that the six day delay in diagnosis and the commencement of antibiotics caused extensive destruction of cartilage which otherwise would have been much less severe. The defendant's experts denied that the delay in diagnosis had caused any injury. The defendant's expert maintained that the MRI taken after the plaintiff's discharge following the five week hospitalization, during which I.V. antibiotics were administered, did not show significant degeneration that was worse than that was depicted on prior films. The plaintiff countered that the reports from the physicians at the non-party Hospital for Special Surgery, relied upon by the plaintiff's experts, had concluded that significant degeneration had, in fact, occurred and that while the arthritis had previously been confined to the patella itself, there was a significant narrowing of the joint space afterwards which had not previously been present. The plaintiff contended that the physicians at the non-party hospital were particularly neutral and argued that their position should be given especially great weight.

The plaintiff maintained that despite her long-standing knee difficulties, she had been able to lead a relatively active life. The plaintiff contended that she had been able to dance and take long walks with her husband and pointed to the defendant's records which supported this contention. The plaintiff further contended that she had been easily able to play with her grandchildren. The plaintiff contended that she suffers significantly increased daily pain and has been forced to lead a much more sedentary lifestyle.

The plaintiff's experts could not dispute that the plaintiff would have nonethless ultimately required bilateral knee replacements or that she would have suffered some destruction of cartilage from the onset of the septic arthritis even if it had been diagnosed in a timely manner and conceded that at least 50% of the injuries stemmed from the pre-existing condition. The experts contended, however, that with only 50% of the damages, the plaintiff probably would have remained functional.

The jury found that the defendant had not deviated as of the initial visit when the plaintiff presented with pain and swelling and that he had deviated as of three days later when she presented with a fever, chills and was hospitalized. They then rendered a gross award of $700,000, attributing 75% of her damages to the pre-existing condition under Scafidi.

COMMENTARY:

Althought the jury rejected the plaintiff's claims that the defendant deviated on the initial visit when he failed to submit the aspirated fluid for immediate culture, they did find deviations commencing with the failure to culture several days later and commence immediate broad based I.V. antibiotic therapy when the plaintiff returned with a low grade fever, chills, nausea, vomiting and was hospitalized. In this regard, the plaintiff argued that when she returned with such signs and symptoms and the defendant realized that the condition was sufficiently severe to warrant hospitalization, the defendant should have also realized that the potential for septic arthritis and the rapid cartilage destruction which would ensue, mandating the administration of broad based I.V. antibiotics until the culture returned and a definitive diagnosis made. In this regard, the defendant pointed to the absence of purulent material and only a low level of white blood cells in the fluid, arguing that these signs pointed away from infection. The plaintiff countered this position by stressing that any presence of white blood cells in the fluid showed signs of inflammation which were somewhat consistent with infection and that in view of the low grade fever and chills and the absence of any significant risks of instituting I.V. antibiotics to the patient, who was already hospitalized, the defendant out of prudence should have done so.

Regarding the reduction for the pre-existing condition under Scafidi, the plaintiff had argued that since the defendant has the burden of establishing that the damages can be reasonably apportioned between the alleged deviation and the pre-existing condition, and since the defendant's experts had maintained that all of the damages stemmed from the pre-existing arthritis and that earlier I.V. antibiotics would not have changed the course, there was no basis from which the jury could make such a determination. The Court reserved on the motion, submitting the issue to the jury and following the submission of briefs on the issue during post-trial motions, ruled that the jury could make such a reasonable determination that was based upon the totality of the expert testimony, inlcuding the conclusions of the plaintiff's experts that at least 50% of the damages stemmed from the pre-existing condition, notwithstanding the plaintiff's arguments that the conclusion of the plaintiff's experts which reflected that with 50% of the injury, the plaintiff would have been able to resume her prior relatively active lifestyle and that all of the damages stemmed from the deviation. It should be noted that the case settled after the post-trial motions for the net verdict amount plus interest.

Finally, it is felt that the plaintiff obtained a very substantial gross award. The plaintiff effectively emphasized that despite the prior, long-standing bilateral knee arthritis, she had been able to lead a relatively active life, enjoying dancing and long walks with her husband and playing with her grandchildren, stressing that she has been deprived of such enjoyment at the very time in her life in which she was approaching the important golden years. In this regard, the plaintiff pointed to the records of the defendant, who had been her treating physician for many years, which reflected her prior ability to remain relatively active.

REFERENCE:

Plaintiff's infectious disease expert: Angelo Scotti, M.D. from Little Silver and Plaintiff's physiatrist: Paul DiLorenzo, M.D. from Eatontown.

A.F. vs. Taffet. Docket No.: MID-L-3629-94; Judge Christine Miniman, December 10, 1998.

Attorney for Plaintiff: Charles A. Cerussi of Giordano, Halleran & Ciesla in Middletown; Attorney for Defendant: Stweard Cunningham of Thomas Leyhane in Lawrenceville.