Facts

Imelda Tovar was 47 years of age when she underwent a total abdominal hysterectomy on December 16, 2015 at Kaiser Permanente. She was discharged to home on Saturday, December 19, 2015 with no apparent complications.

On the morning of Sunday, December 20, 2015, Ms. Tovar woke up with severe pain and massive swelling of her left leg and was transported to St. Jude Medical Center by paramedics. An ultrasound at 10:32 a.m. confirmed the presence of a very large deep vein thrombosis, and a CT scan of the chest at 1:15 p.m. demonstrated bilateral pulmonary emboli. The emergency room physician, Dr. Iksoo Kang, started this patient on Heparin for anticoagulation, with that medication commencing at 12:15 p.m. via a bolus and an IV drip.

In the interim, by 10:15 a.m., the emergency room physician assistant, Karen Delamora, approached Dr. Kang with her concern that the patient had developed a compartment syndrome, which would be a surgical emergency. Neither Ms. Delamora or Dr. Kang had ever heard of a compartment syndrome developing as a result of a deep vein thrombosis (the usual cause is trauma to the leg), and Dr. Kang spoke by telephone with the on-call vascular surgery specialist, Dr. Steven Posner, at 2:13 p.m. that day. Dr. Posner and Dr. Kang did not recall the details of that conversation, but Dr. Kang did document that Dr. Posner told him to elevate the leg "much higher than we have been" and that a compartment syndrome was "very unlikely". Dr. Posner was not asked to come in to see the patient in person and did not choose to do so of his own accord.

The patient was admitted to the hospital that evening and by the following day had also developed numerous blisters on the skin of her left calf. She was transferred to Kaiser on December 22, 2015 and was diagnosed with a compartment syndrome the following day after elevated compartment pressures were detected with a Stryker test.

She underwent an emergency four-compartment fasciotomy on December 23, 2015, which revealed viable and health muscle in all four compartments. The patient also demonstrated normal motor function and sensation of the left leg on December 24, 2015. However, the muscles and nerves of the left lower leg proceeded to die over the next several days and Ms. Tovar eventually required an above-the-knee amputation on January 8, 2016.

PLAINTIFF'S CONTENTIONS: Plaintiffs contended that Ms. Tovar arrived in the emergency room at St. Joseph Hospital on December 20, 2015 with a compartment syndrome due to a deep vein thrombosis, which is a surgical emergency requiring intervention within 12 hours in order to save the leg. They agree that a compartment syndrome due to a deep vein thrombosis is extremely rare, but that the patient had all the signs and symptoms of a compartment syndrome and that the emergency room physician, Dr. Kang, needed to either ask the on-call vascular surgeon, Dr. Posner, to come see the patient in person or needed to administer a Stryker test himself to check the compartment pressures.

Plaintiffs also contended that Dr. Posner was required to come to the emergency room to evaluate this patient in person as soon as he was asked about a potential compartment syndrome as the consequences of a delayed diagnosis of compartment syndrome were so great.

Given that the compartment syndrome was not diagnosed at St. Jude Medical Center on December 20, 2015, plaintiffs' experts testified that it was too late for the leg to be saved at any point thereafter. When the fasciotomy was performed on December 23, 2015 at Kaiser, the muscles and nerves appeared to be viable, but obviously were not as they proceeded to die over the following days.

DEFENDANT'S CONTENTIONS: The two defendant physicians asserted that their care and treatment of this patient complied with the standard of care in all respects. Dr. Kang indicated that he was mindful of the possibility of compartment syndrome, and that while the patient had many of the symptoms of a compartment syndrome, the quality of those symptoms argued against that diagnosis. For example, the patient did have swelling of the left leg, but not hardness of the muscle compartments (as opposed to tightness), and did have paresthesias, but not on the top of the foot as you would expect with a compartment syndrome. He explained that the Stryker test has risks, especially in a patient receiving anticoagulation, and he could not justify performing that test in the context of a low index of suspicion for compartment syndrome.

Dr. Posner explained that his personal threshold to come in and see a patient when contacted by the emergency room is quite low. For that reason, he stated that the communications from Dr. Kang must have been quite reassuring to him that this was not a compartment syndrome; otherwise he would have come in to the hospital to see the patient in person. His custom and practice under these circumstances would be to ask Dr. Kang a series of questions related to the patient's symptoms, and to ask Dr. Kang to examine the compartment of the leg as well as passive range of motion of the foot and ankle. The results of this exam must have been reassuring to him that the patient did not have compartment syndrome, which is why it was not necessary for him to come to the hospital at that time. Dr. Posner asserted that Dr. Kang was equally qualified to perform this physical exam, and that there would be no benefit to him coming to the hospital to repeat that exam personally.

More importantly, the defense emphasized that this patient could not possibly have a compartment syndrome while in the emergency room at St. Jude Medical Center on December 20, 2015. A compartment syndrome is a surgical emergency with a window of 6-12 hours to save the leg from amputation with an emergency fasciotomy. If a compartment syndrome had been present on December 20, 2015 and overlooked, by the time the fasciotomy was performed on December 23, 2015, the muscles and nerves of the leg would have been obviously dead and non-functioning. Instead, the surgeons at Kaiser on December 23, 2013 documented healthy and viable muscle tissue, with no necrosis, and that the muscles were contractile when tested with the Bovie. Moreover, the following day, the patient was found to have full motor function and sensation, all of which the defense contended would be impossible if a compartment syndrome had been present on December 20, 2015.

The defense explained that this patient came to St. Jude Medical Center on December 20, 2015 with an extensive deep vein thrombosis, which was diagnosed and appropriately treated with anticoagulation (Heparin) and elevation of the leg. In better than 99% of all patients, that treatment prevents the deep vein thrombosis from progressing and clotting off other veins in the leg. For reasons unknown, that treatment did not work for Ms. Tovar and in the hours following her admission to the hospital from the emergency room, she continued to form clots and obstruct all venous outflow from the left leg (a condition known as phlegmasia).

When the physicians at Kaiser identified elevated pressures in the compartment of the left leg, they diagnosed the patient with a compartment syndrome and performed a fasciotomy but did nothing to address the underlying phlegmasia (deeming any such procedure too risky). With venous outflow continuing to be obstructed, the muscles and nerves gradually died over the ensuing few days, ultimately forcing an above-the-knee amputation.

Damages

Plaintiffs presented a claim for $17,700 in past loss of earnings as well as a claim of approximately $440,000 for past loss of household services. A life care plan was also presented to the jury for Ms. Tovar's future care needs at a present value of approximately $2,200,000. The total requested award of economic damages approximated $2,660,000.

Injuries

As a result of her above-the-knee amputation, Ms. Tovar contended that her life was irretrievably altered for the worse and all activities made infinitely more difficult (undisputed by the defense). Her husband also asserted that the quality of their relationship as husband and wife was dramatically altered (again undisputed by the defense). Ms. Tovar asked for an award of non-economic damages of approximately $2,660,000 (to match any award of economic damages), with an award of $300,000 in non-economic damages for her husband.

Result

Defense verdict for both defendants on the initial issue of whether the standard of care was met in the care and treatment of this patient.

Other Information

James Huang, D.O. and Dennis L. Ross, M.D. were dismissed before trial. St. Jude Medical Center was dismissed before trial. Kaiser Permanente was extricated from the lawsuit by way of a successful Motion for Summary Judgment.

Deliberation

40 minutes

Poll

11-1 verdict in favor of each defendant on the initial issue of negligence

Length

10 days