Our claims team secured a defense verdict in Queens County Supreme Court in a case involving an allegation of an operative iatrogenic injury to the right peroneal nerve during a right total knee replacement causing foot drop.

The plaintiff was a 55-year-old female with a history of severe arthritis of the right knee who underwent a right total knee replacement by PRI’s defendant orthopedic surgeon after having little improvement from 2 more limited procedures. The operative report did not indicate any difficulty with the procedure or any complications. According to O.R. documentation, the tourniquet time was 59 minutes at 350 mmHg. The total operative time was 1 hour and 43 minutes. The procedure was done under epidural anesthesia with the epidural catheter remaining post-operatively for pain control. Postoperatively, the patient was placed on continuous passive motion (CPM). On postoperative day 2, the surgeon documented right sided foot drop. One month later, the patient still complained of foot drop in the affected limb. She consulted with a plastic surgeon who performed a neurolysis which did not improve her symptoms and she filed a lawsuit against the orthopedic surgeon alleging that his intra- and postoperative negligence caused neurologic damage to her right peroneal nerve.

In response to the allegation of negligent intraoperative injury to the peroneal nerve, our defense counsel sought a summary judgment to dismiss this allegation. The defense was able to show to the court that the nerve was indeed intact without evidence of injury when the plastic surgeon operated and performed a neurolysis. Our defense team produced as evidence, records showing that the patient was neurologically intact for the first 48 hours following surgery. The court agreed with the defense and dismissed the allegation of an intraoperative injury causing the neurologic impairment, leaving only the defendant’s postoperative management to defend at trial.

During trial, the plaintiff’s attorney attempted to argue that negligence on the part of the surgeon, likely due to the order around the use of the continuous passive motion device, caused the nerve to stretch and compress, resulting in injury to the nerve. In response, the defense was able to show that as per the standard of care, CPM is ordered by the physician, after which, it is applied by the physical therapist and monitored by nursing staff. Because the application and monitoring of CPM is not performed by the orthopedic surgeon, he could not have been negligent in its application or monitoring. To support this position, the defense obtained testimony from experts in orthopedic surgery and physical therapy. Examination of plaintiff’s experts by the defense elicited testimony that CPM is in fact the standard of care in postoperative patients of this type. Further expert testimony was elicited revealing that if foot drop had occurred, it is appropriate to continue CPM. The jury was informed that the patient had used CPM twice in the past following her 2 prior knee procedures. She was also in control of the device through a hand held remote control. Finally, it was argued, that the more likely cause of this patient’s injury was due to her hanging her leg over or against the side rail, thereby

compressing the nerve against the fibular head, an injury that would have been exacerbated by the patients elevated body mass index. After hearing all of the evidence, the jury returned a verdict in favor of the defense.

**Although the disposition of this claim predates the formation of EmPRO, the management of the claim was handled by EmPRO’s management company (PRIMMA, LLC). To learn more about the EmPRO story, click here.