Medical Malpractice: Orthopedic/Undiagnosed Infection - $625,000 Settlement

Injuries alleged: Osteomyelitis

Name of case: Withheld

Court/case: Withheld

Tried before judge or jury: Mediation

Amount of settlement: $625,000

Date: Nov.14,1996

Highest offer: $625,000

Insurance carrier: Withheld

Attorney for plaintiff:

KENNETH I. KOLPAN, Boston

Attorney for defendant: Withheld

Other useful information:

The plaintiff, 21, was driving home from the second of her two jobs on Aug. 5, 1990 when she fell asleep at the wheel and hit a tree not far from her home. The plaintiff was rushed to the local hospital emergency room where she came under the care of the defendant, an orthopedic trauma medicine specialist. The defendant diagnosed her as having a grade 11 open fracture of the left tibia and fibula along with a fracture of both bones in her right forearm. The defendant treated her grade 11 open tibia fracture with open reduction, surgical insertion of an intermedullary rod and antibiotics for 48 hours prophylactically. The plaintiff was discharged from the hospital and seen by the defendant for follow-up care.

At office visits with the defendant, the plaintiff allegedly reported that she felt a draining sensation, was chilled, detected a foul odor, all in the area of the grade 11 open tibial fracture. The plaintiff's mother corroborated that the plaintiff reported these symptoms to the defendant. These symptoms are suspicious for an infection especially in light of a grade 11 open fracture of the tibia. The defendant admitted that the patient's reported symptoms of drainage, pain, redness, swelling, fever and foul smell were important factors in his diagnosing an infection. The defendant also acknowledged the devastating consequences of an untreated infection leading to osteomyelitis, a bone infection. The plaintiff's medical records of treatment by the defendant indicated that the tibia[ open wound was draining less and either the same size or smaller. There was no documentation of the plaintiff's claimed reported symptoms of infection. Therefore, the defendant allegedly maintained that a deep wound culture, antibiotics and/or removal of the internal rod were unnecessary. The defendant claimed that the deep wound culture could place the plaintiff at risk for infection, that antibiotics were not prescribed without knowing the bacterial agent and the rod was needed to obtain union.

X-rays of Oct. 24, 1990 revealed evidence of possible osteomyelitis. Subsequently, the defendant did order blood tests which came back normal. The defendant claimed this was another reason not to order antibiotics.

The defendant finally acknowledged in his office notes of Oct. 31, 1990 and Nov. 21, 1990 the possibility of osteomyelitis based on radiological reports (of October 24 and Nov. 21, 1990) indicating that there was an abnormal lucency near the rod bone interface. Finally, on Nov. 29, 1990 the defendant ordered antibiotics because he had diagnosed that the plaintiff had an infection. However, the defendant waited until January 1991 to remove the internal rod claiming that the plaintiff wanted to wait until after the holidays.

Over the next five years, the plaintiff underwent numerous surgeries, including bone grafts and extensive Iliazarov treatment to obtain union of the fracture site. Bone-graft surgeries resulted in serious complications: infections at both the iliac crest and tibia sites and an equinus deformity of the plaintiff's ankle allegedly from stress on or damage to the postolateral tibial nerve by the defendant during the first bone-graft surgery. The plaintiff alleged this surgery would likely have been unnecessary had the defendant promptly and properly diagnosed and treated the original infection (allowing the fracture to heal).

The plaintiff's expert was prepared to testify that the defendant deviated from the standard of acceptable medical practice in failing to promptly diagnose the plaintiff's infection when the symptoms were first reported; in failing to prescribe antibiotics; in failing to take a deep wound culture; and in failing to remove the internal fixation, likely causing the plaintiff to have chronic osteomyelitis which places her at increased risk for recurrent infections, bone cancer and possible amputation.

The case was settled three weeks before trial at an all-day mediation before Christopher P. Kauders.

Published with permission of Massachusetts Lawyers Weekly.