Expert Witness Case #29
Ms. P was a 73-year-old woman in 2017 when she underwent a right knee replacement.
She had an uneventful surgery, and was discharged home.
She presented to the ED one week after the surgery with nausea and 8/10 right leg pain.
Labs and an EKG were ordered.
They did not show any significant abnormality.
A physical therapist saw her in the ED.
She was given reassurance and discharged to a nursing facility for rehab.
10 days later she had an appointment at her orthopedist’s office.
An x-ray was taken of her right knee and showed a periprosthetic femur fracture.
The patient filed a lawsuit against the ED physician from the original visit, alleging that the fracture was present at that time but was not diagnosed because he failed to order an x-ray.
An expert witness was hired and wrote this opinion:
A PT expert witness was also hired.
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The defense noticed that the experts did not clarify the state in which they work, nor how long they have been in practice.
This jurisdiction has very specific requirements, and not including these details is grounds for dismissal of the lawsuit.
The judge dismissed the lawsuit after reviewing similar situations from prior cases:
The plaintiff has now filed a completely new lawsuit, this time including the required attachments.
The defense unsuccessfully attempted to get it dismissed due to the statute of limitations.
The lawsuit was ultimately settled before trial.
MedMalReviewer Opinion:
It’s a minor miracle that a physical therapist came to the ED, determined she qualified for rehab, and they were able to discharge her to a facility. This almost never happens in our modern medical system, and usually requires a sham re-hospitalization to meet insurance criteria. This scenario is a source of frequent conflict between the ED, hospitalist, and administrators.
The difficult issue in this case is the timing of the fracture. There is no way to prove when the fracture occurred. The defense will argue that it happened at the nursing home after she was seen in the ED. The plaintiff will argue that it happened at home prior to the ED visit.
Unlike some medical malpractice cases, the patient did not suffer permanent disability or death. This will likely result in a smaller settlement.
The plaintiff’s attorney made a simple error, which has now cost him many hours of work and years of time since the case began. Between the headache of re-filing the lawsuit and the low potential for financial gain, it was a big mistake to take this case.
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What is the injury this patient is suing for? I don’t get it. I doubt the delay in diagnosis will lead to any disability. This is frivolous.
Agreed…a time consuming case, with very little upside to plaintiffs counsel- from the get go.