Medical Malpractice Bulletin vol. 93 - June 26, 2009


June 26, 2009
Medical Malpractice vol. 93


Medevac pilot and ski patroller Wolfgang Boernert was riding a snowmobile at Alpine Mountain Ski Area when he was thrown from his machine and into a tree which severely smashed his left femur. The grade 4 fracture was treated by Patrick B. Respet, M.D., an orthopedic surgeon. Dr. Respet surgically reduced the fracture and inserted an intramedullary nail which was secured by screws to ensure stable fixation. After the surgery, one of the screws was protruding into the soft tissues of the knee joint, causing pain. In a second surgery, Dr. Respet removed the screw. After the second surgery the femur "telescoped," pushing fracture fragments off to the side and causing the nail's end to enter the knee joint. A third surgery was required, in which Dr. Respet reduced the telescoping and attempted to correct the rotation with two additional screws.

Mr. Boernert went on to other doctors for follow-up care but apparently his fracture never healed and he continued to use a bone stimulator four years later. Plaintiff sued Dr. Respet and the case went to trial. A jury awarded him $1.8 million in damages. The defendant filed a motion for a new trial citing irregularities in the evidence, and Plaintiff moved for delay damages.

Defendant complained of several errors at trial. First, he argued that the plaintiff's expert gave improperly speculative testimony. The expert testified that with a fracture as complex as the plaintiff's, 5% of patients never fully heal even if properly treated. He also criticized Dr. Respet for the method of fixation he used in the initial procedure, and for removing the protruding screw without replacing it. The Court found the expert's testimony to be sufficiently "certain" to support the verdict and overruled the objection.

Defendant next objected that the evidence that plaintiff could not return to his previous occupation and would be permanently injured was also speculative. Plaintiff's expert had examined him and testified that he had "pretty strong feelings" that he could never be a medevac pilot again and that his injuries were permanent. The Court again overruled these objections.

Next, defendant objected that plaintiff's attorney questioned the doctor regarding the informed consent form, when there was no informed consent claim in the case. Plaintiff's attorney established that collapse or movement of the fracture was not disclosed as a risk on the informed consent form. It was also used to impeach the doctor's testimony on why the second procedure was performed - whether it was to improve dynamics at the fracture site or simply to relieve pain. The Court overruled this objection, noting that while there was no informed consent claim, the questioning with the form was done for an appropriate purpose on cross.

Defendant's strongest objection came over plaintiff's use of an X-ray of another patient of Dr. Respet. Plaintiff's counsel used the X-ray to show that the defendant had failed to use locking screws in the tibia to secure the fracture in that patient, though he testified he usually did so. Plaintiff's counsel then asked: ""as a result of doing that, the nail ended up in the knee joint and you were sued." Defense counsel objected and demanded a mistrial, which the Court refused. The Judge did instruct the jury not to give any weight to the improper comment, and no additional evidence of other lawsuits came into evidence.

Defendant again demanded a mistrial over the plaintiff's attorney's mention of a prior lawsuit. The Court overruled the objection, holding that it had to assume the jury listened to and obeyed its instruction to disregard the remark, and pointing out that no other evidence of another law suit was suggested to the jury.

Next, defendant argued that the jury's verdict on future lost earnings was based on inherently speculative evidence and should have been stricken or reduced. The plaintiff offered testimony of an economist who projected plaintiff's future lost income based on two alternative estimates: one was based upon what he'd actually made before the accident, and a second, higher estimate was based on the assumption that plaintiff would have landed a lucrative job as a corporate pilot, which he had never previously sought. The Court rejected the defendant's objection, on the basis that the jury's monetary award for these damages actually tracked the economist's lower estimate, suggesting the allegedly improper speculation about the more lucrative job wasn't heeded by the jury.

The last issue considered by the Court was plaintiff's motion for delay damages. Plaintiff sought delay damages from the date he originally filed his first complaint, though it named only Alpine Mountain. Dr. Respet was added about six months later. Dr. Respet contended that delay damages should only be calculated from the date he was actually added to the case, not from the date of the original complaint in which he was not named.

The Court found no case law addressing the situation, but a comment to the delay damages rule suggested that damages were to be calculated from the first date of service of original process, regardless of when the liable defendant became a party to the case. Accordingly, delay damages against Dr. Respet were awarded to include the months during which he was not even a party to the lawsuit.
â–ª Boernert v. Alpine Mountain (M.D.Pa. June 18, 2009)

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