05/14/2013 LexisNexis
Patient Claimed Failure to Monitor Wound - California
Case Summary: On Jan. 7, 2009, the plaintiff, 54,
an operations manager and Type II diabetic,
presented to a physician's office with pain in
his left foot, due to a misstep from a day or so
prior. The plaintiff previously treated since
July 2007 with the physician for diabetic care
for his right foot.
The physician diagnosed the plaintiff with a
Lisfranc's fracture with possible Charcot's foot.
The physician placed him in a walking boot and
sent him home, telling him to stay off the foot
as much as possible.
On Jan. 12, he returned on an urgent basis due to
greatly increased pain to the same left foot. The
physician removed the walking boot and found a
large blister covering the entire top of his
foot. She drained and debrided the blister, which
then created a 2.5-by-3.5-inch open wound on the
dorsum of the plaintiff's foot.
The plaintiff claimed the physician wrapped the
left foot tightly in an "Unna boot," a gauze
material that is impregnated with medication. The
plaintiff claimed the physician wrapped the wound
in multiple layers, under three different types
of elastic and gauze bandages and then sent him
home, with instructions to not remove the
bandages. The plaintiff claimed the physician
made a follow up appointment four days later on
Jan. 16, and did not prescribe any antibiotics.
At his follow-up appointment, his foot was
unwrapped and found to be infected and necrotic.
He was taken to the hospital and later came under
the care of a vascular surgeon who realized the
plaintiff was septic and that his infected left
lower limb would have to be amputated.
The plaintiff sued the physician for medical
malpractice - failure to monitor.
The plaintiff claimed that after the physician
wrapped his foot, he experienced extreme pain and
fevers, and though his wife made repeated calls
to the office to report his worsening condition,
she never had the chance to speak with the
physician. On Jan. 15, the office told the
plaintiff's wife she could take the plaintiff to
the emergency or wait to see the physician the
next day. The plaintiffs decided to return to the
physician for her continued care.
At the Jan. 16 appointment the plaintiff's foot
was unwrapped and found to be infected and
necrotic. He went immediately to Clovis Community
Hospital where he was diagnosed with a staph
infection and placed on IV antibiotics. He
remained at Clovis for one day before being
transferred to the Fresno Heart and Surgical
Hospital. There he came under the care of the
vascular surgeon who explained that he would die
of sepsis within a few days if the foot/leg were
not amputated.
The plaintiff consented to surgery which took
place that same night on Jan. 17.
The plaintiff contended that the physician
violated the applicable standard of care in
several respects, leading to the direct loss of
his left leg.
According to the plaintiff, the physician first
created a large open wound to the foot of a
diabetic patient, knowing that even tiny open
wounds can quickly become infected. She further
failed to prescribe antibiotics to guard against
such infection. Knowing the potential for
infection, however, she did take a culture of the
wound, which she sent to St. Agnes Hospital lab.
The physician was also negligent when she tightly
covered the open wound with multiple layers of
gauze and elastic, which the plaintiffs contended
made it impossible for the condition of the wound
to be observed by the plaintiff or anyone else
and may have also diminished the plaintiff's
otherwise healthy circulation in that foot.
The plaintiffs further contended the physician
made no provision for frequent observation of the
wound in order to monitor its status.
The plaintiff contended she could have
hospitalized him or could have arranged to have
his wound checked either at her office or by
another provider. The plaintiffs contended that
by failing to provide for such observation, and
by forbidding the plaintiff to remove the elastic
dressings, she prevented the plaintiff's
infection from being discovered and remedied at a
point in time where his leg could be have been
treated and saved. The plaintiff alleged that the
physician never followed up on his care, never
communicated with the hospital to learn of his
status, never called to check on him and only
learned his leg had been amputated when she
received a copy of the vascular surgeon's
operative report.
The defense argued that because the skin at the
top of a fracture blister is so thin and fragile,
it was likely the plaintiff superficial blister
would have popped, opened up and drained without
being incised on Jan. 12. The physician properly
chose to debride the devitalized tissue and drain
the blister under sterile and antiseptic surgical
conditions, rather than letting it spontaneously
open up and drain on its own under what would
have been likely to be non-sterile conditions.
She removed the devitalized tissue on the top of
the plaintiff's blister. It is well accepted
leaving devitalized tissue in a wound is a
perfect medium for bacteria to grow and
infections to ensue.
The defense contended the physician made the
proper choice not to prescribe prophylactic
antibiotics for the plaintiff on Jan. 12.
Although she could have prescribed antibiotics,
it is accepted medical practice to wait for the
result of the culture so the practitioner doesn't
have to discontinue or start over with a
different antibiotic. The plaintiff's wound was
not showing obvious signs of infection and its
culture and sensitivity confirmed it was not
infected and it is well accepted in the medical
community prophylactic antibiotics should not be
prescribed to a non-surgical patient.
Unnecessary use of antibiotics carries its own
well-known side effects of creating bacteria
resistant to conventional antibiotics and other
risks including drug resistance, gastrointestinal
distress and kidney issues for diabetic patients,
such as the plaintiff.
The defense argued that moreover, no expert was
able to specify which particular antibiotic the
physician supposedly should have prescribed. Many
first-line antibiotics used for prophylaxis will
not be effective against bacteria found in
diabetic patients and an expert testified to such
in her deposition when she stated diabetic wounds
are often "poly-microbial," which means there is
often more than one different type of bacteria
present which one antibiotic alone will not cover.
Further, the defense argued the physician's
treatment of the plaintiff suspected Lisfranc
fracture, potential Charcot foot and fracture
blister were all well within the podiatric
standard of care. She applied a three-layer Unna
boot with a sterile, compressive dressing used
routinely in diabetic wound care. Many
compressive dressings are designed with five or
six layers.
The defense contended the plaintiff's compressive
dressing was not "tight" in the sense it would
restrict his blood circulation, yet applied
enough compression to reduce the swelling the
plaintiff had from his left foot trauma, which
defense claimed he worsened by walking on against
the physician's explicit medical advice to him.
The plaintiff needed the compression dressing
because his foot was so swollen from a suspected
fracture or other trauma he developed what
appeared to be a fracture blister. The
compression dressing allows swelling to subside
and the skin to reabsorb the fluid causing the
swelling.
If the swollen foot had been left unwrapped/not
compressed, the plaintiff would have been at
greater risk of continued swelling and the
development of more fracture blisters in other
locations as well as at risk for developing other
open lesions from the pockets of fluid, according
to the defense.
The defense contended the physician did not
breach the applicable standard on care on Jan. 12
when she scheduled the plaintiff to come back
four days later to check on his fracture.
Instead, the plaintiff and his wife were
repeatedly advised by the physician of the
dangers of ignoring her advice to be strictly non-
weight bearing and to call or go to the emergency
room with any changes in his condition.
The defense asserted that there is no requirement
a non-infected foot be checked the next day after
an initial appointment. The physician claimed she
properly re-appointed the plaintiff for four days
later with strict instructions to monitor his
temperature and overall health and to call with
any changes in his condition. Despite these
instructions, the plaintiff was exhibiting severe
pain, drainage, fever and frequent urination on
Jan. 13, the next day. Nevertheless, neither the
plaintiff nor his wife decided to go an ER.
The defense claimed that although the physician
advised plaintiff's wife on Jan. 15 to come in
sooner than the plaintiff's previously scheduled
appointment on the afternoon of Jan. 16 or go to
the ER under such circumstances, the plaintiff
and his wife chose to wait and then kept
plaintiff's appointment with the physician the
next day.
The defense argued that the physician properly
instructed the plaintiff not to remove the Unna
boot/dressing she applied. This was to avoid the
inherent risks of a layperson attempting to
remove a professionally applied dressing which
include: potential mis-alignment, inadvertent
cutting of skin with scissors when cutting the
wrappings for removal, removing only part of the
dressing (thereby creating a "tourniquet effect")
or removing the dressing in a non-sterile
environment with non-sterile instruments causing
contamination and probable infection.
On the other hand, the physician intended to
remove the plaintiff's Unna boot four days later
on Jan. 16. The defense claimed this is
appropriate wound care and the standard of care
did not require her to remove the boot sooner.
Had the plaintiff called her on Jan. 13 or 14
with complaints, the physician's protocol was and
still is to have her patient seen in her office
as soon as possible or to advise them to go to
the ER, if she could not see them soon enough.
The defense contended that again, neither the
plaintiff nor his wife conveyed the necessary
information to the physician during this time
period for her to act.
The defense further contended that on Jan. 12
there was no patent medical condition present
which required the immediate hospitalization of
the patient. Instead, the physician urged the
plaintiff to be completely non-weight bearing and
had a long discussion with him about possible
severe outcomes if he did not comply with her
advice.
The defense disputed a theory of liability which
posited the physician should have sought
hospitalization for the plaintiff because he was
a demonstrably non-compliant patient bound to
ignore her advice, however, "non-compliant
patient" is not necessarily a medical diagnosis
or reason for hospitalization.
Furthermore, the defense contended that it can
easily be shown that the plaintiff's insurance
company would not have allowed hospitalization
for the plaintiff's recalcitrance alone in terms
of proper treatment, assuming arguendo the
physician somehow divined what her patient's
prior non-compliant attitude might mean to his
future prognosis.
Injury Text: The plaintiff remained in the
hospital for approximately two weeks and
underwent two additional surgical procedures,
including a final, formal amputation of his leg
just below the knee. He was then discharged to
San Joaquin Rehabilitation Hospital for in-
patient care for approximately two weeks,
followed by several months of out-patient
rehabilitation. He has been fitted with a
prosthetic leg, which has required multiple re-
fittings with further re-fittings to come.
Plaintiff claimed medical billings of
$206,563.76. His wife sought recovery for loss of
consortium.
Plaintiff claimed that at some point between Jan.
12 and Jan. 16, the foot became unsalvageable,
but if it had been properly monitored, he could
have been started on IV antibiotic treatment
immediately upon observation of the infection, or
before, and the leg could have been saved.
Award Details: The parties agreed to settle for
$350,000 five days prior to trial.
Plaintiff's podiatric expert: Nancy Kaplan, DPM,
Napa, CA
Defendant's podiatric expert, Bruce M. Dobbs,
DPM, Daly City, CA
Source: LexisNexis
