Morrison Mahoney partner Joe Flanagan recently won two Maine Pre-Litigation Screening Panel hearings for the same orthopedic surgeon. Screening Panel hearings are full evidentiary hearings with testimony from the plaintiff, providers, and experts before a panel consisting of a lawyer, doctor, and judge.
In the first case, the popliteal artery was inadvertently severed during arthroscopic knee surgery to remove a loose body in the posterior compartment of the knee, leading to severe, life-threatening complications and permanent impairment. Our client and expert opined that it was reasonable for an arthroscopy specialist to operate in the area as long as she evaluated the risk step by step and was ready to abort if the procedure would disrupt the posterior capsule wall (behind which ran the artery). We successfully argued that the plaintiff could not prove whether the artery had been damaged by contact with a surgical instrument, or whether the artery may have been attached to the knee capsule by scar tissue that previously developed after significant trauma/surgery years earlier (which would have been undetectable).
In the second case, our client performed shoulder arthroscopy (biceps tenodesis, subacromial decompression, and distal clavicle resection) on a 63-year-old man who complained that his symptoms significantly worsened after the surgery. The plaintiff’s case was greatly aided by the testimony of another local surgeon who later performed revision surgery on the patient and was critical of our client’s tenodesis technique and failure to remove enough bone from the acromion and distal clavicle. We argued that although the doctor’s tenodesis technique was somewhat unconventional, it was still within the standard of care, and that a high percentage of tenodeses fail even when properly performed. With respect to the acromion and distal clavicle, we argued that young surgeons are trending toward a minimalist approach in removing less bone. Removal of more bone (as advocated by plaintiff’s expert creates other risks to the patient and can reduce the options for future surgery, if needed.
