New Mexico court affirms $7.3 million medical malpractice verdict for MRSA infection following knee surgery

by Charles Miller

Lori Sandretto slipped on a wet floor and injured her right knee, which eventually required outpatient surgery to repair a torn meniscus. Sandretto’s pain continued, which prompted her to see Dr. Charles Calkins, an orthopedic surgeon. Calkins was employed by Payson Healthcare Management (PHM). Calkins found that the meniscus was still torn and performed a second surgery in September of 2008. Calkins removed fluid from the knee during surgery for testing, which was subsequently negative for infection.

Sandretto’s condition initially improved, but within a week, her knee became swollen, red, and painful. She was examined by a physician’s assistant working for Calkins. The PA prescribed antibiotics for a skin infection. Days later, Sandretto went to the emergency room. Calkins came to the hospital, confirmed the earlier diagnosis of a skin infection and prescribed a different antibiotic. Five days later, Sandretto called Calkins’s office to say her knee still hurt and was now draining fluid. The PA told a staff member to tell Sandretto to keep taking antibiotics.

Sandretto saw the PA again about a week later, still believing she had a skin infection. A few weeks after that, the PA aspirated Sandretto’s knee and had the fluid tested. Three days after that, the results came back positive for methicillin-resistant Staphylococcus aureus (MRSA). MRSA is an infection that destroys tissue and, when found in a joint, requires high doses of antibiotics as well as surgery to wash it out.

Calkins did not recall being told about the results of the fluid test, but medical records showed he wrote a prescription for intravenous antibiotics. Sandretto eventually saw Calkins on October 22, 2008, and he performed a surgery on October 24, 2008, to wash out the MRSA.

Sandretto ultimately required two more “washout” surgeries, and eventually needed a knee replacement. Her knee pain continued despite the knee replacement, and her treating physician diagnosed her with Complex Regional Pain Syndrome (CRPS), a chronic pain condition caused by a nerve injury.

Sandretto sued Calkins and PHM for medical malpractice, alleging Calkins did not act quickly enough to diagnose and treat the MRSA infection, thus necessitating aggressive medical treatments that resulted in permanent impairment. Dr. Calkins and Sandretto settled days before trial for $900,000. After an eleven-day trial, the jury returned a verdict in favor of Sandretto for $7,275,160 against PMH. The Arizona Court of Appeals has now affirmed the jury verdict, finding the Gila County Superior Court judge made no mistakes in the course of the trial.

In particular, PHC argued on appeal that the trial court judge erred by letting Sandretto’s various expert witnesses testify. Sandretto presented expert testimony that she might not have needed the knee replacement nor developed the chronic pain condition had her doctor handled the case differently. The experts testified that her doctor waited too long before testing for the source of infection and acting aggressively to get rid of it. PHA argued on appeal that these experts failed to provide an adequate scientific basis for their opinions. The appeals court disagreed, finding that in medical malpractice cases, a doctor’s direct experience qualifies him as an expert even without the kind of cause and effect studies that might be required in a product liability case.

PHC also argued that the trial court should have rejected the enormous verdict because it “shocked the conscience and was not supported by evidence.” The direct damages established at trial included $330,000 in medical expenses up to the point of the trial, an estimated $2 million in future medical expenses, a loss of earning capacity of between $400,000 and $740,000 and loss of “household services” valued at $485,000, for a total of $3.5 million in direct damages. The jury also awarded some $3.8 million for pain and suffering, disfigurement, anxiety and loss of enjoyment. The court of appeals judges said it was up to the jury to determine the damage award and the total didn’t rise to the legal standard of a “shock to the conscience.”

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by Charles Miller

Charles Miller is a licensed attorney and a partner at Heygood, Orr & Pearson. Charles focuses his practice on areas of complex commercial litigation and personal injury litigation.