Facts

On Feb. 25, 2006, claimant Helga Gruber, 40, suffered a fracture of the left hip. X-rays at West Hills Hospital revealed a comminuted intertrochanteric fracture of the left hip.

Respondent Dr. Michael Lee, orthopedic surgeon on-call, recommended a surgery to fix the fracture involving a reduction of the fracture, then an internal fixation by way of an intramadullary nail that goes down the femur and is fixed at the hip by a hip screw.

Respondent performed the surgery on Feb. 26, 2006. As part of the surgical procedure, claimant was transferred to the fracture table in the operating room. While under general anesthesia, respondent was required to reduce the fracture to realign the bones back in place and ensure that the rotation of the leg is as close to anatomically correct as possible before fixation. This is done by performing a number of maneuvers, and is determined clinically. Respondent's operative report states that the left foot was placed in "neutral rotation" prior to fixation.

Following surgery, claimant underwent physical therapy. She saw respondent at his office on March 10 and again on March 31. By March 31, claimant noticed that her left foot appeared turned in. The physical therapist confirmed to her that her left leg was internally rotated, which could not be remedied through physical therapy. Respondent's notes for his March 30, examination reveal "no obvious rotation deformity." Claimant pointed the rotational problem out to respondent. Initially, respondent advised against corrective surgery. Eventually, he recommended a second opinion with Dr. Donald Wiss and scheduled a CT scan to determine the amount of the left leg rotation in comparison to the right. Dr. Wiss recommended that claimant allow the hip fracture to heal. Once that occurred, he would perform a de-rotational osteotomy. This procedure involved taking out the intermadullary nail, breaking and sawing through the femur bone, de-rotating the bone by the correct amount of degrees, then refixing the bone to the hip.

Claimant agreed and switched care of her leg to Dr. Wiss. She saw Dr. Wiss on a regular basis for the next five months. On a number of those visits, Dr. Wiss documented his clinical impression of a 30-degree of internal rotation of the left foot. Once claimant's fracture healed, Dr. Wiss performed the surgery on Sept. 28, 2006. During surgery, Dr. Wiss de-rotated the femur by 30 degrees.

Following this procedure, claimant underwent physical therapy and continued to see Dr. Wiss for post-surgery evaluation and monitoring.

In post-surgery notes, Dr. Wiss reported perfect rotation was achieved. Claimant continued to see Dr. Wiss on a regular basis. Her last visit with Dr. Wiss was in May 2006, at which time she was released from his care.

Respondent successfully filed a petition to compel arbitration. This case was arbitrated pursuant to a binding arbitration agreement, which required the parties to each select a party arbitrator, who in turn, selected a neutral arbitrator. The arbitration hearing was heard by all three arbitrators.

CLAIMANT'S CONTENTIONS:
Claimant contended that, while an over rotation of the leg is a possible known risk of the procedure, the standard of care allows at most a 20-degree over rotation. A 30-degree over rotation of the leg is clearly beyond what is acceptable and is evidence that, at the time of fixation during surgery, respondent had realigned the left in a 30-plus-degree of over rotation. This is below the standard of care.

Expert Dr. Jacob Tauber opined that, simply looking at the medical records, it doesn't appear that Dr. Lee did anything that was below the standard of care. However, the patient ended up with at least a 30-degree internal rotation deformity. There was no evidence of bone movement after the fixation or the surgery (per radiographic tests); therefore the 30-degree over rotation must have been placed at the time of fixation, and not in the neutral position claimed in respondent's report. This is below the standard of care.

Also, Dr. Tauber rejected defense expert's initial opinion that claimant had mild acetabular dysplasia in the left hip which would explain the over rotation. Neither Dr. Tauber nor any of the treating physicians (including respondent) could see the alleged acetabular dysplasia on any of the radiographs. In the end, a 3D rendition of claimant's CT scan revealed no acetabular dysplasia.

RESPONDENT'S CONTENTIONS:
Respondent contended that this was a complex fracture (four parts). With this type of surgery, involving this type of complex fracture, over rotation is a known risk, even up to the degree that occurred with claimant. The surgery was performed within the standard of care.

Initially, respondent's expert, Dr. Merritt opined in an affidavit to support respondent's motion for summary judgment that claimant had mild acetabular dysplasia in her left hip, a congenital condition that caused the excessive over rotation. Following claimant's filed opposition, Dr. Merritt no longer held that opinion (and claimed to not have seen the actual CT scan, only the report, at the time he executed the declaration). Instead, Dr. Merritt opined that claimant had natural "ante version" in her leg that explains the over rotation. He also disagree with the 30-degree + over rotation, claiming the over rotation was only 20 degrees (although his own calculations based on the CT scan revealed an over rotation of 26 degrees).

Finally, Dr. Merritt opined that even if the over rotation was 34-38 degrees, given the complexity of this fracture this result did not indicate medical negligence.

Settlement Discussions

Claimant made a CCP 998 demand of $144,990. Respondent made no offer.

Injuries

Claimant suffered post-surgical internal rotational deformity of the left leg, requiring a second surgery to de-rotate.

Result

Award for claimant for $143,000 ($13,000 economic; $130,000 non-economic).

Other Information

ARBITRATORS: Arlan Cohen, plaintiff's arbitrator; Jim Nichols, defendant's arbitrator. FILING DATE: May 22, 2007.