Facts

Plaintiff Jane Doe, 63, had a history of a right knee replacement in 2009 and a right total hip replacement performed in 2013. The patient had a history of opioid abuse and dependence 20 years earlier, requiring a methadone maintenance program.

On Nov. 21, 2016, plaintiff fell outside her home while bringing in groceries. At that time, plaintiff was 5'1 tall and was obese, weighing 165 pounds. She had severe pain on her right thigh for several hours and then decided to go to the hospital. X-rays of the right knee were obtained and showed a spiral fracture of the right distal femur with a relatively small 2-3 mm displacement.

Roe Surgeon first saw the patient on Nov. 22, 2016. Because of the patient's prior hip surgery, instead of a rod, Roe Surgeon decided to use a plate. Roe Surgeon performed the surgery on Nov. 24, 2016. Roe Surgeon put in his operative report that "a distal femoral plate was too wide to fill in the femur, therefore, a narrow fracture plate was applied. 2 screws below and 2 screws above the fracture with good fixation." Apparently, intraoperatively, Roe Surgeon decided he wanted a more narrow plate to get the device closer to the knee replacement hardware. As such, he used a far more narrow plate.

By late 2017, plaintiff had severe pain and discomfort in her leg. Subsequent x-rays and an examination showed that there was a break in the plate, causing a massive spiral fracture. Despite three additional surgeries that helped straighten the leg, plaintiff was permanently disabled and essentially had a second knee on the right leg as a result of the severe fracture.

PLAINTIFF'S CONTENTIONS: Plaintiff claimed the subsequent treating surgeon stated that the plate that was used was clearly meant for a smaller bone such as the humerus and not the femur. He noted that it was a "severe deformity" and was essentially a "flamingo bend" at a 90-degree angle as a result of the break.

Plaintiff also contended that at his deposition, the Roe surgeon admitted that he could not recall ever using a plate this narrow for any other femur repair surgery. However, Roe surgeon did not know that the plate was meant for an arm. Indeed, Roe surgeon wrote in his chart note: "How it broke is still a mystery to me."

The subsequent surgeon explained that had a femoral plate been used by Roe surgeon, this result would not have happened. The subsequent surgeon said it was not a "mystery" why this occurred and it was in fact an obvious an expected outcome given the small, insufficient plate that was used. The subsequent surgeon also opined that there was nothing abnormal about Plaintiff's anatomy that would make it impossible to use a proper femur plate.

DEFENDANT'S CONTENTIONS: Roe Surgeon opined that plaintiff's anatomy was very difficult, with extensive existing hardware as a result of both her total knee and hip arthroplasties. Only a smaller plate would have fit within the confines of those other present devices. As such, it was a judgment call to use the smaller plate and not below the standard of care.

Damages

General damages were limited by the MICRA cap of $250,000. There was also past Medi-Cal and Medicare liens totaling approximately $45,000. Plaintiff contended that future home care, surgeries, hospitalizations, and therapy would have totaled over $1 million.

Result

The parties resolved the case for $631,185 after an all-day mediation session with mediator Rob Dobbins, Esq. of Judicate West.