$1.1 Million Verdict in New York Medical Malpractice Case

Medical Malpractice - Deep Tissue Injury

WRSH partner Jason Rubin obtained a $1.1 million verdict in a medical malpractice case arising out of a deep tissue injury (a type of pressure ulcer) suffered by our client.

Plaintiff, a 55 year old morbidly obese, diabetic woman, with a history of hypertension and high cholesterol went into the defendant hospital to undergo gastric bypass surgery. The surgery went well but, several days later, she started experiencing nausea and vomiting. A CT scan was performed which revealed an anastomotic leak. She underwent further surgery to repair the leak.

While in the recoveryroom for this second surgery, her blood pressure dropped and her heart rate became elevated. She was given IV fluids, which stabilized her blood pressure. She was then transferred to the Surgical Intensive Care Unit (SICU) for closer monitoring. While in the SICU she became septic and had tachycardia (elevated heart rate) and tachypnea (elevated respiratory rate). Approximately 33 hours after being transferred to the SICU, a nurse detected a deep tissue injury on plaintiff's sacrum. This deep tissue eventually progressed to a Stage IV pressure ulcer -the deepest and most severe form of pressure ulcer.

At trial, we claimed that the nurses in the recovery room and SICU failed to turn and reposition plaintiff every two hours as required by accepted nursing practices and a care plan that was formulated by the nurses for plaintiff. The hospital chart did not contain any record that plaintiff was, in fact, turned every two hours. We also claimed that the deep tissue injury only could have occurred if plaintiff was not turned and repositioned every two hours.

The defendant nurses testified that it was their practice to turn and reposition all of their patients every two hours and that they did so despite there being no contemporaneous documentation of such repositioning. Additionally, the defense claimed that the insult that caused the deep tissue injury occurred during plaintiff's second surgery, when she was positioned on her back for several hours. They also claimed that her deep tissue injury was caused by unavoidable skin breakdown due to her underlying comorbidities and septic state. Specifically, it was claimed that plaintiff's sepsis caused a lack of perfusion (delivery of blood and oxygen) to her skin, allowing it to break down.

Jason was able to refute the defense's position by getting important concessions during cross-examination of the defendant nurses and defense expert. Specifically, they conceded that, despite her being septic, there was no clinical evidence of lack of perfusion to the skin in that all peripheral vascular and skin exams were always within normal limits. They also conceded there was no other evidence of lack of perfusion to any other organs: her blood pressure was within an acceptable range; her lactate levels on blood gas testing were normal; her kidney function was normal; her liver function was normal; she had no change in mental status. With regard to the defense that the deep tissue injury was caused by the surgery, Jason obtained a concession from the defense expert that the position plaintiff was in for the surgery would not have placed significant pressure on the sacrum, particularly compared to the position she was in while in the SICU (head of bed was elevated 30 degrees).

Jason argued that the defense's position was nonsensical: if her skin was so compromised from lack of perfusion and she was, in fact, turned from side to side as the nurses claimed, then plaintiff would have developed a pressure ulcer on her hips and shoulders, which she didn't. Jason argued that the deep tissue injury on the sacrum could only occur by plaintiff lying on her back for an extended period of time, which was indicative of not being turned and repositioned every two hours.

Plaintiff's deep tissue injury progressed to a Stage IV pressure ulcer, which took approximately nine months to heal with the assistance of a wound vac and visiting nurse services. She has experienced pain and discomfort to the present time and, as conceded by the defense expert, she will likely continue to suffer pain in the future due to scar tissue formation.

The jury awarded $500,000.00 for plaintiff's past pain and suffering; $500,000.00 for her future pain and suffering, and; $100,000.00 for her husband's loss of services and consortium.

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