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9th District reverses Akron General malpractice case
TRACEY BLAIR
Legal News Reporter
Published: February 28, 2020
A Summit County trial court improperly ruled in favor of an Akron hospital in a lawsuit alleging a doctor left a surgical instrument in an appellant’s knee during surgery.
That’s according to the 9th District Court of Appeals, which recently reversed and remanded the lower court’s granting of summary judgment in favor of Akron General Medical Center, John Pedersen, M.D., Akron Plastic Surgeons, L.L.C., and Michael Parker, M.D.
Adam Peters and his wife, Tara, filed a complaint for negligence, medical malpractice and loss of consortium in December 2017.
On June 22, 2012, Peters was involved in a workplace accident in which his left leg sustained extensive bone fractures. He also had significant soft tissue injury from a deep laceration extending to the bone that was contaminated with dirt and oil.
Dr. Erika Glass, an orthopedic surgeon, performed multiple surgical procedures on Peters’ leg to repair the bone and to clean out the infection in the open wound, court records showed.
Peters required a knee replacement. In preparation for the surgery, Glass referred Peters to Pedersen for a free flap surgery to increase blood flow and healing in Peters’ leg. Pedersen and Parker performed the free flap surgery on March 28, 2013 at Akron General.
On June 4, 2013, Peters had an X-ray taken of his leg during a follow-up appointment with Glass. The X-ray revealed “a metallic something” on the side of Peters’ left thigh, near the site of the free flap surgery. Glass consulted with her partner who suggested that the metal item might be a vascular clamp.
Glass and her partner performed the knee replacement surgery eight days later.
For the next three years, Peters continued to follow-up with Glass regarding the condition of his knee and the infection. Peters also saw various infectious disease specialists and was continuously prescribed antibiotics because of the chronic infection in his leg. During this time, there were no complaints or any discussions about the clamp between Peters and Glass. Peters’ primary concern was his inability to bend his knee and his very limited range of motion in the knee. Due to the chronic nature of the infection in the leg and her concern for a possible amputation, Glass declined to perform additional surgical procedures on Peters’ knee to increase his range of motion.
Peters obtained a second opinion from another orthopedic surgeon in October 2016. That surgeon performed two surgeries – one to remove the original prosthetic knee and the clamp in Peters’ middle thigh, the other to place a new prosthetic knee.
The knee revision significantly increased his range of motion, but Peters most likely will have to take antibiotics for the rest of his life.
On appeal, Peters argued the trial court erred in finding the malpractice claim barred by the one-year statute of limitations under R.C. 2305.113(A).
“Specifically, Mr. and Mrs. Peters argue that the trial court erred when it only considered the date Mr. Peters learned that the clamp was in his leg and failed to consider when Mr. Peters learned that the clamp’s presence was improper and harming him. We agree with Mr. and Mrs. Peters only as to their argument regarding the discovery of the clamp’s presence being improper,” 9th District Judge Lynne S. Callahan said in her 3-0 opinion.
Callahan said the trial court improperly focused on the doctor’s thoughts and beliefs regarding the clamp, as opposed to what Glass actually communicated, either by words or actions.
“Instead of construing the evidence in the light most favorable to Mr. and Mrs. Peters, the trial court appears to have disregarded this evidence and resolved competing inferences in favor of the moving parties regarding when Mr. and Mrs. Peters knew or should have known that the clamp was not intentionally left in Mr. Peters’ leg for a sound medical purpose and therefore was a foreign object,” Callahan said. “Additionally, the trial court failed to apply the proper law in determining the cognizable event when it did not undertake any analysis regarding Mr. Peters’ reliance upon Dr. Glass and whether his reliance was reasonable.”
Appellate judges Thomas Teodosio and Jennifer Hensal concurred. The case is cited Peters v. Akron Gen. Med. Ctr., 2020-Ohio-369.