Avoiding Malpractice Claims With Better Communication Among Physicians

Effective communication among wound care physicians is crucial to prevent malpractice claims. This author presents a case study illustrating how action or inaction on the part of the physicians led to allegations of professional liability, and how risk management techniques may have either prevented the outcome or increased the physician’s defensibility.

The following closed claim study is based on an actual malpractice claim from Texas Medical Liability Trust. This study has been modified to protect the privacy of the physicians and the patient.

A 29-year-old woman came to the emergency department (ED) via ambulance. She had injured her left knee by stepping in a hole during an altercation. The ED physician examined the patient and diagnosed a dislocation of the left patella.

The patient was referred to a local orthopedic surgeon, who ordered magnetic resonance imaging (MRI). The radiologist reported full thickness tears of the anterior cruciate ligament (ACL) and posterior cruciate ligament (PCL) and a complete tear of the lateral complex with a tear of the iliotibial band, a full thickness tear of the fibular collateral ligament, and a full thickness tear of the popliteal tendon. The biceps femoris tendon was also avulsed from the head of the fibula and there was a large avulsion fragment. The patient was started on physical therapy.

Two weeks later, the orthopedic surgeon took the patient to surgery. He performed a left knee arthroscopic PCL reconstruction, arthroscopic ACL reconstruction, lateral collateral ligament reconstruction and repair, biceps tendon repair of the avulsion off the fibula, partial lateral meniscectomy, chondroplasty of the patella, direct end-to-end repair of the peroneal nerve, and end substance repair of the popliteus.

The patient was seen four days later for follow-up. The orthopedic surgeon noted severe damage to the peroneal nerve, and indicated doubt as to whether she would ever obtain meaningful function of that nerve. The staples were removed and the surgeon noted she had complete foot drop and a lack of sensation on the dorsum of her foot. There were no signs of infection. The patient began a course of physical therapy.

The Wound Progresses to Non-Healing and Infection

Returning a week later, the patient was concerned that she had an infection because her incisions had not healed. The orthopedic surgeon noted cellulitis around her eshcar without pus pockets. He was unable to express any purulence. He prescribed ciprofloxacin, and asked the patient to return in one week. When she returned, the cellulitis was gone but some black eschar was debrided. The surgeon noted no active infection.
The patient received a referral from her family physician to a specialist in hyperbaric medicine to address the wounds. This physician saw the patient on April 28 and noted new granulation tissue was forming. Culture and sensitivity testing indicated Staph aureus. The patient returned on May 1. Three wounds were debrided and packed. On May 3, additional necrotic tissue was excised.

During the May 5 physical therapy session, it was noted the patient’s wounds were not healing. On May 10, the physical therapist noted foul-smelling drainage from the wounds. Over the next several weeks, the patient cancelled several physical therapy and wound care visits.

The patient returned to the orthopedic surgeon’s office on June 4, and was noted to be very weak and unable to stand or walk for prolonged periods. During a June 12 visit to the hyperbaric medicine specialist, the physician drained 2 cc of pus. On June 14, culture and sensitivity testing revealed methicillin-resistant Staph aureus (MRSA). The hyperbaric medicine specialist prescribed clindamycin.

On a return visit of June 16, two of the wounds were closed, but a third area had increased granulation. By June 26, the physician reported that the wound was almost closed. The physician reported on July 3 that the wound measured approximately 0.2 x 0.3 cm and that the patient was planning additional surgery.

The orthopedic surgeon referred the patient to another orthopedic surgeon in a neighboring city to address her foot drop and the peroneal nerve injury. There was no communication between the hyperbaric medicine physician and the first orthopedic surgeon or between the hyperbaric medicine physician and the second orthopedic surgeon.

The Patient Sees a Second Surgeon

The patient came to the second orthopedic surgeon on July 7. He noted well-healed scars, a stable knee, a history of Staph infection, no active anterior tibialis function, and no active peroneal nerve function. The patient had no toe dorsiflexion. The surgeon’s impression was foot drop with peroneal nerve palsy. He ordered electromyography (EMG) and nerve conduction velocity (NCV) studies; he believed the patient would likely benefit from a posterior tibial tendon transfer. He noted the patient’s prognosis was not good.

On July 10, the patient next saw the second orthopedic surgeon’s partner, a physical medicine and rehabilitation specialist. He performed the EMG/NCV. He reported no response in the left peroneal nerve, and that the patient had severe peroneal nerve neuropathy likely with complete transection. A preoperative history and physical were performed and the risks and benefits of surgery were discussed with the patient. That same day, the patient cancelled her final appointment with the hyperbaric medicine specialist.

The second orthopedic surgeon performed a percutaneous Achilles tendon lengthening, posterior tibial tendon transfer, and tenodesis of the toe extensors on July 11.

The patient was seen postoperatively on July 26, and the surgeon began addressing the anticipated need for additional surgery. The patient also discussed the desire for hardware removal, and the notes reflected that the first orthopedic surgeon requested that the second orthopedic surgeon remove the hardware.

The second orthopedic surgeon took the patient back to surgery on August 3. He revised the scar on her knee, removed the hardware, performed a lengthening of the flexor digitorum longus and tenotomy flexor digitorum brevis tendons to the second and third toes, and fused the great toe.

The patient returned to the second orthopedic surgeon’s office on September 18 with redness and swelling of the surgical sites. Cultures indicated MRSA infection.

Incision and drainage (I&D) of the left foot was performed and wound cultures revealed MRSA 4+. The patient was started on vancomycin. The second orthopedic surgeon believed the previous MRSA infection had become quiescent. He told the patient that during the hardware removal procedure, the quiescent infection was seeded in the foot.

The patient was taken back to surgery on September 22. He performed I&D on the left toe, foot and tibia, and placed antibiotic beads in each site. The procedure was repeated three days later. She was discharged on October 1 on IV vancomycin.

On October 11, the patient was admitted to the hospital, where the second orthopedic surgeon removed the antibiotic beads and performed a repeat I&D. The patient was discharged October 26 without evidence of infection.

A Medial Wound Opens With MRSA

During two follow-up visits in November, the patient exhibited no signs of infection. However, the patient returned to the surgeon’s office on December 17 with a slight opening of the medial wound. Cultures were positive for MRSA. The orthopedic surgeon believed the wound opened secondary to increased activity. He prescribed trimethoprim/sulfamethoxazole and topical sulfamethoxazole/trimethoprim, and asked the patient to return in two weeks. The surgeon did not feel IV antibiotics were indicated.

The patient returned on December 24. The wound was closed and healed without evidence of infection. The second orthopedic surgeon told the patient that her peroneal nerve palsy was a permanent condition and that she could expect to develop arthritis in her knee and weakness in her ankle.

In January, the patient was admitted to a local hospital by her family physician for workup of potential residual infection. A bone scan was reported to show abnormal activity in the left foot, ankle, and knee, consistent with osteomyelitis. An MRI showed no evidence of osteomyelitis. Wound culture revealed MRSA 1+. The patient was discharged on January 17 with IV vancomycin.

The patient returned to the second orthopedic surgeon on January 22. The surgeon theorized that the patient had retained cement or suture that harbored infection. He admitted the patient on January 24 and performed another I&D. The patient was continued on vancomycin.

During the month of February, the patient saw an infectious disease specialist who noted no additional signs of infection. He told the patient there was little evidence to support a diagnosis of osteomyelitis. A single-photon emission computerized tomography (SPECT) study on February 13 did not support the diagnosis of septic joint or osteomyelitis. The patient may have had disuse atrophy. An MRI of the knee was read as benign.

A Look at the Allegations in the Lawsuits

Lawsuits were filed against the hyperbaric medicine specialist and the second orthopedic surgeon. The allegations against the hyperbaric medicine specialist included:
• prescribing clindamycin at a dose too small to achieve proper treatment for MRSA;
• failure to communicate the MRSA infection to the orthopedic surgeons; and
• failure to tell the patient to inform any subsequent surgeon that she had an MRSA infection.

Allegations against the second orthopedic surgeon included:
• failure to employ a proper prophylactic antibiotic regimen before surgery;
• failure to explore the patient’s history to determine whether the patient had suffered an MRSA infection;
• removing the knee hardware at the same time the ankle and toe procedures were performed; and
• failure to inquire with the first orthopedic surgeon or the hyperbaric medicine specialist about prior treatment.

What Are the Legal Implications?

The plaintiff was able to locate expert testimony to support the allegations. The plaintiff’s infectious disease expert stated that the defendant failed to provide appropriate follow-up and that the antibiotics were inadequate to treat a deep infection. The appropriate treatment would have been administering parenteral antibiotics, conferring with the orthopedic surgeon, and recommending removal of the hardware. He was also critical of the defendant for failing to tell the patient the nature of her MRSA infection.

The plaintiff’s orthopedic surgeon was critical of the defendant’s failure to follow up on the Staph infections reported to him by the patient preoperatively. Additionally, the prophylactic antibiotics he prescribed were inadequate.

Defense experts were supportive of both defendants. Regarding the actions of the hyperbaric medicine specialist, his objective was to close the patient’s wounds, which he did. His choice of antibiotics was appropriate, and the patient exhibited no signs of infection when she left his care.

When the second orthopedic surgeon saw the patient, there were no signs of infection.

The infection the patient had following the second surgery may well have been newly acquired as opposed to a recurrence of a quiescent infection. Further, the infection was treated appropriately. The patient suffered a severe and disabling injury and the infections made no difference in her outcome.

A weakness in this case involved the lack of communication among physicians. Initially, the patient was referred to the hyperbaric medicine specialist by her family physician, not the first orthopedic surgeon. The first orthopedic surgeon stated that he did not know who was treating the patient’s wounds. Further, there was no communication between the hyperbaric medicine specialist and the second orthopedic surgeon because the hyperbaric medicine specialist did not know who the second surgeon was going to be and could not contact that individual. The patient did not keep her final appointment with the hyperbaric medicine specialist, but called and cancelled before her second surgery.

This case was taken to trial and the jury returned a verdict in favor of both defendants.

Risk Management Considerations

Lack of communication was a weakness and became the foundation for the allegations in this case. The hyperbaric medicine physician was criticized for not telling the patient she had an MRSA infection. Documentation of educating the patient regarding her condition (MRSA) would have aided in his defense. The first orthopedic surgeon stated that he did not know the patient was being treated for wound care, and could not have relayed that information to the second orthopedic surgeon.

The second orthopedic surgeon stated that he did not know the patient had an MRSA infection. On a patient questionnaire completed and given to the second orthopedic surgeon, the patient wrote “Staph x 3.” A question on the patient history questionnaire requesting the names of other physicians treating the patient for the same injury may have prompted the surgeon to call the referring orthopedic surgeon to inquire about the Staph infections, particularly since his course of treatment would have been affected.

The allegations of negligence against the hyperbaric medicine physician and the orthopedic surgeons may have been prevented with improved communication and documentation.

Laura Hale Brockway is the Assistant Vice President of Marketing at Texas Medical Liability Trust.

This article is published by Texas Medical Liability Trust as an information and educational service. The information and opinions in this article should not be used or referred to as primary legal sources or construed as establishing medical standards of care for the purposes of litigation, including expert testimony. The standard of care is dependent upon the particular facts and circumstances of each individual case and no generalizations can be made that would apply to all cases. The information presented should be used as a resource, selected and adapted with the advice of your attorney. It is distributed with the understanding that neither Texas Medical Liability Trust nor its affiliates are engaged in rendering legal services. Copyright 2020 TMLT.