Summary

When a patient sought care from multiple medical providers for evaluation of a painful foot, none of them allegedly thought to evaluate blood flow to his foot. When he later developed gangrene, he contacted a medical malpractice attorney. A jury later awarded the patient a $32 million medical malpractice judgment.

Background

According to documents filed in the medical malpractice lawsuit, a 26-year-old male went to an urgent care clinic for atraumatic pain in his right foot, ankle, and calf for the prior 3 days. He rated the pain as 8 on a 1-10 scale and noted that the pain became worse with walking and better with rest. He had previously been prescribed Coumadin for a pulmonary embolism but had discontinued treatment shortly before the pain began. Physical exam showed a slight enlargement of the calf, and the patient was sent to the hospital emergency department. A physical exam in the emergency department noted “pulses present” and “no neurovascular compromise distally.” A venous Doppler was negative for DVT, and the patient was discharged to follow up with his primary care provider. The following day, the patient saw his primary care physician and complained of continuing leg pain. An X-ray showed no traumatic injury, and anti-inflammatories were recommended. The patient returned three days later using crutches to assist with ambulation due to pain. The physical exam documented “good peripheral pulses.” He was referred to an orthopedist the following day, where erythema was noted on the dorsum of his foot, but the neurovascular status of the foot was again documented as being intact. He was then sent to the hospital to be admitted for foot cellulitis. A venous Doppler was repeated, showing “thrombus within the peroneal vein.” The admitting hospitalist discussed the case with a vascular surgeon, started the patient on anticoagulation, and ordered an arterial Doppler. Two hours later, the arterial Doppler showed a nonocclusive clot in the right popliteal artery, with nonvisualization of the dorsalis pedis artery and minimal flow to the peroneal and posterior tibial arteries. The vascular surgeon evaluated the patient later that evening and ordered a CT angiogram, which was completed at 1:00 AM, showing thrombus in the popliteal artery above the knee with no flow below the proximal third of the leg. The patient was hospitalized for 19 days during which multiple surgical procedures were performed to try to re-establish blood flow to the patient’s leg. Thrombectomies were performed on three separate occasions. The patient received intra-arterial tPA and underwent a bypass graft. Despite these treatments, he developed gangrene and eventually required a below-the-knee amputation.

The medical malpractice lawsuit

An expert criticized the physicians for negligent failure to perform adequate physical examinations, failing to consider intermittent claudication as a reason for the patient’s symptoms, failing to recognize the potential for the patient’s hypercoagulable state given his history of pulmonary embolism and ulcerative colitis, failing to obtain timely ankle-brachial indices, failing to obtain timely arterial Doppler exams, failing to refer the patient to a vascular surgeon, and failing to timely diagnose the patient’s arterial insufficiency.

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After a trial on the matter, experts testified that had the patient received earlier anticoagulants or a clot removal surgery, the patient would not have required a foot amputation. The jury awarded the patient $32,747,000 for past and future damages.

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Did the jury make the right decision?

No medical records were included in the court filings in this matter. Expert opinions, court testimony, and information provided the plaintiff attorney’s web site raised several issues.

Did ulcerative colitis increase the patient’s likelihood of thrombosis?

The plaintiff attorneys repeatedly alleged that the patient was at increased risk of developing blood clots due to his history of ulcerative colitis. Consensus statements from the Canadian Association of Gastroenterology state that patients with inflammatory bowel disease have a threefold higher risk of venous (not arterial) thromboembolism, but even those conclusions were based on low-quality evidence. Several other sources note that the likelihood of thromboembolism in blood vessels increases with active ulcerative colitis flares – especially when patients are also taking steroids. This case did not mention whether the patient was having an active flare of ulcerative colitis, but there was no mention of gastrointestinal complaints during his visits to urgent care, his family physician, or the hospital.

Did the patient manifest symptoms of peripheral arterial disease?

The patient complained of 8 of 10 lower extremity pain which worsened with ambulation and was better with rest. While musculoskeletal pain is certainly a consideration for such symptoms, there was no history of trauma and the pain was diffuse, not localized. Available documentation did not reflect the complete extent of lower extremity examinations performed, but pulses were repeatedly documented as being intact. Although acute limb ischemia is uncommon (only 1-2% of patients with lower extremity arterial disease progress to acute limb ischemia) and even less common in a 26-year-old, the patient’s complaints could be suggestive of peripheral arterial disease, especially when other etiologies had been ruled out. Arterial insufficiency should have been included in the differential diagnosis for this patient.
The most commonly used classification system for acute limb ischemia is the Rutherford classification, which divides presentations into viable, marginally threatened, immediately threatened, and irreversible ischemia. Arterial Doppler signals are typically absent in threatened and irreversible ischemia. It is possible that the patient’s pulses diminished in the days prior to his hospitalization. However, nonvisualization of the dorsalis pedis blood flow and visualization of only minimal posterior tibial flow on the patient’s arterial Doppler once admitted to the hospital support the diagnosis of acute limb ischemia and support the plaintiff expert’s opinions that adequate physical examinations were not performed. These findings also call into question the repeated documentation of “intact” pulses and neurovascular status in the days leading up to the patient’s hospitalization.

Did a delay in diagnosis affect the patient’s outcome?

To prove medical malpractice, a plaintiff must prove that the defendant’s negligence caused the plaintiff’s damages. A common defense of medical malpractice cases is a lack of causation. In this case, a reasonable argument could be made that even if the patient had been diagnosed with severe arterial insufficiency in the emergency department or in his primary care doctor’s office, the outcome would have been the same – he would still have required multiple surgical interventions, he would still have developed complications during the surgeries, and he would still have developed gangrene. Recall that after the patient was admitted, blood flow to his distal extremity was still demonstrated on Doppler exam – at which time he was started on heparin. It was only during the subsequent CT angiogram that absence of perfusion to the lower leg was demonstrated. Alternatively, if complete arterial occlusions were allegedly causing the patient’s pain from its onset, the defense might argue that the patient’s outcome was inevitable since three days of arterial occlusion would have resulted in gangrene regardless of subsequent treatment.

Was a medical malpractice verdict of $32 million justified?

There is no correct answer to this question. In this case, the jury awarded more than $10 million for past and future pain and suffering, $5 million for disfigurement, and more than $6 million for emotional distress. See the jury verdict form posted below. The verdict was reportedly one of the largest verdicts ever reported to the Illinois Jury Verdict Reporter for loss of one leg or foot. Contrast these awards with compensation paid by the federal government for similar injuries. Special Monthly Compensation for veterans who suffered loss of use of organs or extremities range from approximately $4,300 to $11,600 depending on the severity of injury.  Assuming a patient lives an additional 50 years with his injury and using the average SMC paid by the Department of Veterans Affairs ($7,950), the patient would receive approximately $4.77 million over his lifetime. Under Section 8107 of the Federal Employee’s Compensation Act, a federal employee who suffers a foot amputation due to an injury on the job is compensated at up to 75% of his or her salary for 205 weeks (about 17 years). For a federal employee earning $100,000 per year, the injury would result in compensation of approximately $1.275 million.
A review of jury verdict reports for the past 20 years reveals a preponderance of defense verdicts in 121 amputation-related medical malpractice cases. Of those cases, 31 involved judgments or settlements of $1 million or more. Most of the larger judgments involved surgical complications and/or amputations of multiple extremities. Most plaintiff verdicts were due to either undiagnosed arterial occlusions or undiagnosed compartment syndrome. Many of the more recent verdicts or settlements exceeding $1 million were for more than 8 figures and were for varied conditions.

• One case involved a $32 million settlement for an 8 year old patient who required amputation of all four extremities after emergency physicians failed to diagnose septic arthritis.
• Another case involved a $28 million verdict when a 4 month delay in diagnosing a pelvic osteosarcoma necessitated leg amputation and removal of half of the 23-year-old patient’s pelvis.
• A third verdict for $62 million resulted from a leg amputation after a patient developed gangrene from arterial thrombosis when his coumadin was discontinued.
• A fourth involved a $11 million settlement after a patient developed gangrene when a nurse placed an IV in his foot to treat him for dehydration.

Although a $32 million judgment seems excessive for the injuries the plaintiff suffered when compared to compensation paid by the federal government for similar injuries, jury verdict research shows that in some cases juries are willing to award large verdicts totaling tens of millions of dollars for amputations and other permanent injuries they believe are due to negligent medical care.

Enforcement of the medical malpractice judgment

Once a verdict has been entered in the plaintiff’s favor, the plaintiff is permitted to begin enforcing the judgment. Even if the defendant intends to appeal the verdict, unless the defendant posts a bond or a court stays enforcement proceedings (which is uncommon), the plaintiff may compel the defendant to turn over any non-exempt assets to satisfy the judgment. When a judgment exceeds medical malpractice insurance limits, most of the defendant’s assets are subject to seizure. One of the documents filed in this case was a “Citation to Discover Assets” which must be answered by the defendants. See the Citation to Discover Assets filed in this case posted below. Note the detail and depth of the required disclosures. The judgment debtor must disclose all tax returns, bank statements, trust accounts, securities statements, business interests, deeds to ownership of property, other financial statements, interests in any intellectual property, any documents relating to any payments more than $500 made by the judgment debtor, and whether the debtor owns a DVD player or a microwave oven.

Adequate medical malpractice insurance policy coverage is usually sufficient to protect a physician’s personal assets. However, when megaverdicts exceed malpractice policy limits, a career’s worth of investments and savings could suddenly be seized. For this reason, providers with large amounts of investments and other assets may benefit from a discussion with a financial professional to determine how to best protect those assets from adverse legal actions.

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