Medical Malpractice: Negligence Before, During and After Surgery

The most common surgical malpractice claim is operative negligence, which arises when a plaintiff alleges that a surgeon deviated from the standard of care during technical elements of the procedure. Of course, negligence can also occur before or after a case, but rarely do we see 3-tiered malpractice claims in which a patient suffers acts of negligence during the pre-op, operative and post-op phases.

Sadly, multiple acts of negligence do occur. Just ask Matthew Standley, winner of a nearly $12 million verdict and loser of his leg to devastating infectious complications that necessitated amputation.

In April, a Florida jury returned an $11,882,175 plaintiff verdict against Broward County orthopedic surgeon Melvyn Rech, DO. The lawsuit stemmed from complications of an elective total knee arthroplasty (TKA) that Dr. Rech performed on Mr. Standley, who had undergone 14 prior knee surgeries and had experienced osteomyelitis on at least one occasion. Following the surgery performed, Mr. Standley's left leg became so infected that amputation was the only recourse. Mr. Standley's lawsuit claimed that Dr. Rech breached the standard of care at every step along the way:

• Pre-op. Mr. Standley was not a candidate for TKA because of his multiple knee surgeries and history of osteomyelitis.
• Intraop. Dr. Rech failed to provide appropriate perioperative antibiotics.
• Post-op. Dr. Rech failed to properly manage the infection once it occurred.

Additionally, Dr. Rech's records didn't include a complete history of Mr. Standley’s previous surgeries or osteomyelitis — despite a report of such by another doctor who performed pre-op medical clearance — and no indication that a bone scan, MRI or CT was performed before surgery. The surgery, done in 2 stages over 3 months, included arthroscopy, meniscectomy, chondroplasty and removal of hardware.

Two weeks after the final surgery, Mr. Standley presented to Dr. Rech’s office for post-op evaluation. The doctor ordered Keflex (cephalexin) for infection prophylaxis, which Mr. Standley's complaint alleged "indicates that infection was in Dr. Rech's thought process," court records show.

Eleven days later, Mr. Standley went to an ER with complaints of severe left knee pain and drainage. An ER doctor noted that the surgical site had surrounding erythema and warmth. Lab tests showed elevations in white blood cell count, sedimentation rate and C-reactive protein. Mr. Standley was admitted for cellulitis and "possible infected hardware." However, Dr. Rech visited the patient the next day and wrote a progress note that said there were no indications of infection and that the patient "may be treated on an outpatient basis," after which Mr. Standley was discharged.

The next night, however, Mr. Standley was back in the ER, reporting knee pain and swelling. He was admitted with a diagnosis of infection and inflammatory reaction due to internal joint prosthesis. Wound cultures showed moderate growth of E. coli, and an indium white blood cell scan suggested osteomyelitis. He was transferred to another hospital, where a doctor advised Mr. Standley to "strongly consider the possibility of amputation" given the poor wound conditions and the extensive rehab that would be required if they could eliminate the infection. The doctor performed an excisional arthroplasty, antibiotic spacer insertion and deep wound closure. About 3 months later, Mr. Standley returned for revision of the spacer, and an infectious disease doctor recommended 2 more months of antibiotics. Five weeks later, he returned for evaluation, where he was informed that due to his extensive osteomyelitis, "nothing further could be offered to him from the orthopedic standpoint except amputation.”

The jury deliberated for less than an hour before returning the verdict. Dr. Rech didn't attend the trial and is reportedly no longer in practice. His counsel, Jay S. Weiss, withdrew before the trial once he saw there was no chance of a settlement.

The surgeon's duty to comply with the standard of care begins at the first moment of the patient encounter. The pre-op visit is when the surgeon determines whether a patient is an appropriate candidate for a proposed procedure. It's also when the surgeon educates the patient on the procedure so that the patient may give, or withhold, his informed consent.

In this case, the plaintiff's attorney and his expert witness argued that Mr. Standley was not a knee replacement candidate because of his multiple knee surgeries and history of osteomyelitis.

While technical competence is often the focus of surgeons and administrators, pre-operative patient selection and post-operative care are critical elements when addressing surgical risk.

Contraindication to surgery is the most powerful plaintiff argument, as it explicitly means that the patient could not possibly have suffered any harm had they not undergone surgery in the first place. When a plaintiff prevails on an operative contraindication claim, the remaining negligence claims pale in comparison because any bad outcome — routine side effect, known complication or even medical negligence — would not have occurred if surgery was never performed.

In the OR, the plaintiff's expert testified that Dr. Rech breached the standard of care by not providing perioperative antibiotics for Mr. Standley's high-risk situation. Further arguments drew a causal link between the omission of antibiotics and Mr. Standley's infection and limb loss. Even if this had been the only successful claim, the plaintiff still would have prevailed, but the plaintiff's counsel had another line of attack when criticizing post-operative management.

Specifically, the plaintiff's expert argued that Dr. Rech also failed to provide timely and compliant post-op care, and that the deprivation of care aggravated the plaintiff's catastrophic infection. Combined with the other breaches, this specific post-op breach of the standard of care predictably led to a resounding plaintiff verdict.

This case highlights the need to proactively mitigate risk along the entire continuum of surgical care. While technical competence is often the focus of surgeons and administrators, pre-operative patient selection and post-operative care are critical elements when addressing surgical risk. OSM