Appeals Court Upholds $7.3 Million Verdict

Repeated knee surgeries left woman crippled; in chronic pain

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A Gila County Superior Court judge made no mistakes in the course of a trial that ended in a $7.3 million jury verdict for a woman whose botched knee surgery left her in chronic pain and unable to walk normally, the Arizona Court of Appeals ruled last week.

Lori Sandretto won the $7.3 million jury verdict against Payson Healthcare Management (PHC) after settling with the doctor who performed the surgeries on the eve of the trial for $900,000 — just under the maximum his malpractice insurance would pay.

PHC filed a wide-ranging appeal, much of which rested on the claim that the Superior Court judge erred in letting Sandretto’s various expert witnesses testify.

PHC also claimed that its experts should have been able to tell the jury that Sandretto had other medical problems involving emotional issues and chronic pain. However, the appeals court judges decided the judge had properly barred that testimony.

PHC also argued it should have had more time to reconsider its strategy when the doctor who performed the series of knee surgeries settled. However, the appeals court said PHC raised many issues it didn’t raise during the trial and didn’t include in its original appeal for a new trial. Therefore, they concluded they could not consider many of the issues raised in the briefs the company ultimately filed.

As a result, the three-judge panel upheld the trial court on every point decided.

The case started when Sandretto slipped and fell on a wet floor in April of 2008, injuring her right knee.

A surgeon she didn’t sue performed surgery to repair a torn meniscus.

Her pain continued, so she consulted Dr. Charles Calkins, an orthopedic surgeon with 35 years experience, according to the appeals court summary of the case. He said the meniscus was still torn and operated again on Sept. 5, 2008. He drained off fluid and tested for infection, finding none.

She initially improved, but then her knee grew increasingly painful and swollen. She saw Calkins’ physician assistant who prescribed antibiotics for a skin infection. The pain persisted and she went to the emergency room two weeks later, where Calkins saw her, agreed it was a skin infection and changed antibiotics.

She saw the physician assistant again 10 days later and he drained some fluid from her knee and sent it out for testing. The tests revealed she was infected methicillin-resistant Staphylo­coccus aureus (MRSA).

She saw the doctor on Oct. 22 and he performed surgery on Oct. 24, 2008 to wash out the wound and try to get rid of the drug-resistant bacteria.

Despite two more “wash out” surgeries, she eventually needed a knee replacement. Even then, she developed Complex Regional Pain Syndrome (CRPS), a poorly understood chronic pain condition.

Sandretto’s attorneys and assorted expert witnesses testified she might not have needed the knee replacement nor developed the chronic pain condition had her doctor handled the case differently. They insisted he waited too long before testing for the source of infection and acting aggressively to get rid of it. The experts disagreed on exactly when she contracted the MRSA infection and the precise connection between the repeated surgeries and the development of the chronic pain.

PHC raised a great flurry of objections to many aspects of the trial, none of which impressed the appeals court judges.

Among the claims the judges shot down:

• The judge shouldn’t have admitted many of the patient’s expert witnesses, since they had long medical experience, but couldn’t cite the detailed scientific basis for their opinions. However, the appeals court said that in medical 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 when qualifying experts.

• The judge shouldn’t have ruled out testimony about Sandretto’s prior medical issues, listing 61 facts it sought to tell the jury. However, the appeals court judges concluded that many of the facts on the list did end up going before the jury and that PHC had failed to prove that the value of admitting the remaining points outweighed the prejudicial effect on the jury.

• The judge shouldn’t have accepted the cost estimates offered by Sandretto’s expert, who had 20 years experience in preparing lifetime care plans. However, the appeals judges concluded that the witness had enough experience to make a valid estimate.

• The judge should have given PHC more time to figure out how Dr. Calkins’ last-minute settlement with Sandretto would affect its case — instead of going straight to trial. Calkins’ separate deal meant his insurance company would pay all his costs. PHC tried to convince the judge to reject the last-minute settlement. However, the appeals court judges ruled the company presented no compelling legal argument to delay the trial. Calkins at trial admitted he had violated the “standard of care” and said he didn’t remember exactly when he was told that the lab results showed his patient had a MRSA infection. However, he wrote a prescription that suggested he knew at least a month before he remembers knowing. The testimony proved damaging to PHC’s defense.

• The judge 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 $3.5 million in direct damages. The jury also awarded some $3.8 million for pain and suffering, disfigurement, anxiety and loss of enjoyment. Testimony said that her knee was locked in position, she suffered pain riding in a car and essentially had to walk on her toes — in addition to suffering chronic pain. However, the 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.”

• The judge should have ordered a new trial because Sandretto’s defense attorney made improper comments during his closing arguments including the claim that Sandretto was “in jail” because “her body is her prison” and that “She could hear (PHC) laughing.” The appeals court judges concluded the remarks weren’t improper.

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