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Lawrence County

This was a medical malpractice action in which the plaintiff, suffering from juvenile onset diabetes, contended that as a result of the negligence of the defendant general practitioner, who failed to take an x-ray when he presented with pain and swelling following several fall downs when ice skating on a Friday evening, a fracture to the calcaneus was not diagnosed, substantially contributing to a severe deformity of the heel and resulting shortening of the achilles tendon causing a permanent limp and necessitating a brace to walk.

The plaintiff maintained that he had fallen several times as he was skating and did not immediately become aware that he had injured himself due to peripheral neuropathy. The plaintiff contended that shortly after he had completed skating, significant pain and swelling developed. The plaintiff related that he did not believe that he could reach the defendant family physician over the weekend and that he had, therefore, treated himself with ice packs, elevation and bedrest until Monday when he telephoned the defendant’s offices. The plaintiff indicated that he was advised to call back in a week if the pain continued.

The defendant vigorously denied being contacted on that Monday.

The evidence disclosed that the plaintiff visited the defendant several days later and that the defendant, who noted pain and swelling, and that the area of the ankle and heel were warm to the touch, suspected deep veined thrombophlebitis. The defendant performed clinical testing involving flexing the leg and elicited a painful response in the calf, which he interpreted as a positive Hohman’s sign indicative of deep veined thrombophlebitis, whereupon he made a diagnosis of deep veined thrombophlebitis and hospitalized the patient that day. No x-rays were taken.

The plaintiff remained in the hospital for approximately one week and during this period, Heparin and Coumadin were administered.

The swelling had resolved and the plaintiff was discharged. The defendant contended that the pain had fully resolved as of this time and the plaintiff maintained that although the pain had improved because he was not ambulating, it remained to some degree. The plaintiff’s expert in physical rehabilitative medicine contended that the defendant should have taken an x-ray upon the history of a fall down and the signs consistent with a fracture, including pain, swelling, skin which was warm to the touch and discoloration. The defendant contended that the signs were also consistent with deep veined thrombophlebitis, to which the plaintiff was particularly susceptible due to the diabetes, and that in view of the absence of a traumatic incident causing immediate pain and swelling other than several fall downs which did not result in immediate symptoms, the x-rays were not necessary.

The evidence disclosed that the defendant ordered a venogram during the hospitalization which was negative and that the defendant did not take an x-ray. The plaintiff’s expert contended that in view of the negative results of this test, deep veined thrombophlebitis should have been ruled out, mandating that an x- ray be taken. The defendant’s expert orthopedist contended that in view of the fact that the plaintiff could not point to a specific trauma which immediately caused symptomatology, the defendant was not obligated, based upon several incidents in which he fell while skating, to take an x-ray. The plaintiff’s expert maintained that in view of the history of these stressful events and the symptoms, an x-ray was mandated, especially since the peripheral neuropathy could mask the onset of immediate pain.

The plaintiff contended that the pain continued unabated over the ensuing week following discharge, that he then attempted to make an appointment with several orthopedists, but could not obtain an appointment until three weeks after the discharge from the hospital, whereupon he visited the non-party subsequent treating orthopedic partners. The plaintiff indicated that the pain and swelling had continued during this period. An x-ray was taken and the fracture diagnosed. It was determined that a closed reduction was no longer feasible because of the bone knitting which had already. The plaintiff’s expert maintained that had the defendant properly taken a timely x-ray, he could have performed a closed reduction, and opined that the failure to do so increased the risk of and substantially contributed to the deformity of the calcaneus.

The subsequent treating orthopedists, who testified for the defendant, contended that the fragment of the fracture was very small, that a closed reduction could not have been successfully performed and the defendant contended, therefore, that there was an absence of proximate cause. The physicians also contended that although a smaller fragment would normally be treated by way of an open reduction, such a course could not have been taken in this case because of the risks associated with the diabetes and the plaintiff did not dispute that an open reduction was inappropriate. The plaintiff’s expert maintained, however, that the fragment was of a size which is treatable by way of a closed reduction. The plaintiff also confronted one of the subsequently treating physicians with an orthopedic text, conceded to be authoritative, which contained a diagram of a small calcaneus fracture fragment. The plaintiff contended that although the scales did not correspond, the size of the fragment in the diagram was similar in proportion to the size of the fragment depicted on the plaintiff’s x-ray. The plaintiff maintained that since the fracture depicted in the book was discussed as treatable by way of a closed reduction, the defendant’s position should not be accepted. The subsequent treating physician denied that the fracture depicted in the text was proportionally similar in size to the plaintiff’s fracture.

The defendant’s expert orthopedist contended that the plaintiff’s fracture did not occur at the time claimed and that it was likely that it was an older fracture. The plaintiff elicited testimony from the subsequent treating orthopedists that the fracture occurred at about the time claimed by the plaintiff and that an x-ray should have been taken. The plaintiff maintained that in view of the apparent conflict between the defense experts on these issues, the conclusions of the plaintiff’s expert should be given greater weight. The defendant also contended that the plaintiff was comparatively negligent in failing to immediately seek medical attention after the fall downs and maintained that the plaintiff had, in actuality, waited two weeks after the falling incidents before seeking treatment and not several days as claimed. The defendant contended that in view of the hospital records upon admission reflecting that the falling incidents had occurred several weeks earlier, the plaintiff’s contentions that he had advised the defendant that it had occurred several days before his initial visit should not be accepted. The defendant, who did not contend that this delay would have prevented proper treatment, maintained that in view of the ability of the plaintiff to walk for this period of time, his failure to suspect a fracture and take an x-ray was reasonable. The defendant also contended that the plaintiff was negligent in waiting to obtain the services of the non-party subsequent treating orthopedists.

The plaintiff countered that he should be expected to assume that the defendant was not providing proper care. The plaintiff further contended that once he opted to see the subsequent physicians, he had to wait some time for an appointment.

The plaintiff contended that the heel deformity caused a shortening of the achilles tendon, resulting in permanent extensive weakness, a pronounced limp and the permanent requirement for a brace to walk. The plaintiff’s expert conceded that the pre-existing, diabetes induced, peripheral neuropathy could be accounting for a portion of the weakness, but maintained that the plaintiff would not have required a brace if the fracture had been treated in a timely manner. The plaintiff’s expert also contended that the brace creates a significant risk of ulceration which would increase the chances of the plaintiff requiring an amputation of the leg. The expert conceded that the plaintiff would face such a risk in the future because of the diabetes in-and-of itself. It was further undisputed that the pre-existing diabetes was severe, having caused diabetic retinopathy which left him virtually blind in one eye. The plaintiff, who was unemployable because of the diabetes, had been receiving social security before the alleged deviation and no future wage loss claim was made. The jury found the defendant 55% negligent, the plaintiff 45% comparatively negligent and rendered a gross award of $________. The case subsequently settled for $________. Plaintiff’s specialist in physical rehabilitative medicine: James Cosgrove from Pitts. Defendant’s expert orthopedist: Thomas Green of Carlisle, Pa. Subsequent treating orthopedists testifying for defendant: Bernard Hirsch and John Lehman of Beaver Falls, Pa. Kloos vs. Kaplan. Case no. ________/87; Judge McCracken, 2-21-89. Attorney for plaintiff: Mark Homyak; Attorney for defendant: Francis Garger.

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