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Despite Neuropathy, Jury Finds Total Hip Patient Cared for Properly

Expert testimony convinced jurors that a nerve injury sustained during a hip arthroplasty was a "known and unavoidable complication," not the product of a surgical negligence.

Published: February 27, 2017

NO NEGLECT Dr. David B. Hartmann performed a total left hip replacement on James Tomsula in September 2011. Neurological assessments later confirmed neuropathy in the patient's left leg.

A jury has cleared an orthopedic surgeon, his practice and a Pittsburgh, Pa., hospital of negligence in a malpractice case involving a patient's permanent nerve injury sustained during a hip arthroplasty. The defense had argued that the injury was an unavoidable complication of the surgery, not the product of carelessness or neglect of the clinicians involved.

On Jan. 30, jurors came down in favor of David B. Hartmann, MD, an orthopedic surgeon with Pittsburgh Bone and Joint Surgeons, who on Sept. 27, 2011, performed a total left hip replacement on patient James Tomsula at Jefferson Regional Medical Center in Pittsburgh. Mr. Tomsula, 68, had been seeking damages for past and future pain and suffering, while his wife had been seeking damages for loss of consortium.

Court records show that Mr. Tomsula, while recovering from surgery in PACU, complained of weakness in his left leg. Over the next 2 days, neurological assessments confirmed high peroneal neuropathy in Mr. Tomsula's left leg, resulting in permanent "foot drop" that is believed to be permanent. A complaint filed in November 2013 alleged that the injury resulted from Dr. Hartmann breaching the applicable standard of medical care — including his decision to perform the surgery using a posterior approach, which increased the risk of injury.

Fallon Stephenson, Jefferson Regional Medical Center's attorney, says jurors told her at the trial's conclusion that they found the defense's expert testimony to be more believable than the plaintiff's. The defense supplied expert testimony from a physician who said a nerve injury is a "known and, at times, unavoidable complication" of total hip arthroplasty, even when clinicians take meticulous care to prevent such injuries from occurring.

She says the plaintiff's attorneys also argued that hospital staff failed to adequately monitor the patient for situations that might contribute to a nerve injury — specifically, the strap placement for a post-operative abductor pillow. However, the plaintiff couldn't identify which strap might have caused the injury, a point she says resonated with jurors.

"I don't think there's anything the hospital staff could have done better," says Ms. Stephenson, adding that the patient had been informed about the risk of this particular complication before surgery. "The abductor pillow was removed and replaced whenever the patient was moved, so it was coming off and on constantly; there was no period of long, sustained compression."

Alan S. Baum, Dr. Hartmann's attorney, says his client retired from active surgery about a year ago, but felt compelled to take a stand.

"Dr. Hartmann was not going to suffer any adverse consequences, even with a verdict against him; he had adequate insurance for himself," says Mr. Baum. "He chose to fight the case because he wanted to stop the wave of patients filing lawsuits and getting money solely because a surgeon doesn't have the time or money to fight back."

Outpatient Surgery Magazine's attempts to reach the plaintiff's attorneys for comment were unsuccessful.

Bill Donahue

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