While pain, swelling, and warmth/heat sensation are symptoms that accompany trauma, the estate asserted that these are also symptoms of a DVT and that the surgeon, as a reasonable orthopedic physician, should have tested the decedent for a DVT on August 13, on the morning of the surgery, or any day in between and that he also should have ordered a hematologic consult. The estate’s orthopedic surgery expert testified that the surgeon violated the standard of care by failing to appreciate the symptoms and risk factors the decedent was experiencing. The expert testified that the decedent had 4 of 5 high-risk factors for a DVT: Although there was no family history of DVT, the decedent had sustained leg trauma, he was older than 40, his leg was immobilized, and he was considered obese (BMI > 30).
The same orthopedist further opined that a Doppler performed on August 13 more likely than not would have shown the DVT, and the August 16 knee surgery would have been delayed until it was treated. He added that the failure to perform a second Doppler before surgery constituted negligence that caused the decedent’s death. The estate’s hematology expert testified that the decedent was a candidate for prophylactic anticoagulation on August 13 and, if a Doppler had been performed, the need for such medication would have been discovered.
The defense argued that the decedent’s signs and symptoms did not change following the Doppler on August 10 and, therefore, there was no reason for the surgeon to order a second Doppler prior to performing surgery. The defense further argued that the NP, in the scope of her practice, was not allowed to order a Doppler, knew that the surgeon would be seeing the decedent during the same visit, and could rely on the surgeon to order the necessary presurgical tests. The defense’s orthopedics expert testified that, unless there was an increase in signs and/or symptoms, the standard of care did not require the surgeon to order another Doppler. The expert further testified that the surgeon did not place the decedent on a presurgical anticoagulant because this would have increased his risk for bleeding. The defense’s hematology expert testified that there was no guarantee an anticoagulant would have prevented the PE because of the large size of the clot. He further stated that the decedent was not a candidate for prophylactic anticoagulants prior to surgery because the Doppler was negative for clotting, and there was no increase in his symptoms after the Doppler was performed.
The estate’s NP expert testified that, while performing the presurgical clearance, the defendant NP failed to obtain the Doppler history or a full description of the patient’s symptoms (which resulted from a DVT) and failed to order a Doppler. The defense’s NP expert testified that, based on the defendant NP’s testimony, she was not allowed to order a Doppler, and that, as an NP, she would have had a document in her credentials setting forth what she can and cannot recommend. Since such a document was not produced, this could not be determined, she opined.
VERDICT
After an 11-day trial and 2.5 hours of deliberation, the jury found in favor of the plaintiff estate. The jury found the NP’s employer not liable but the physicians’ employer responsible. Damages totaling $5,511,567 were awarded to the estate.
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