No. 100,286
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
KEELY FOSTER, a Minor, through her Parents and Natural Guardians, Kim Foster and Kevin Foster, and Individually on their own behalf,
Appellants,
v.
MICHELLE A. KLAUMANN, M.D.,
Appellee.
SYLLABUS BY THE COURT
1. The trial court is required to properly instruct the jury on a party's theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal.
2. In a medical malpractice action, the specialist duty of care instruction, PIK Civ. 4th 123.12, rather than the general duty of care instruction, PIK Civ. 4th 123.01, should be given to the jury when a defendant has held himself or herself out as being a specialist in an area commonly recognized as such in the medical profession.
3. In a medical malpractice action, if there is a dispute as to whether the specialist duty of care or the general duty of care is applicable in light of the evidence in the case, both instructions, PIK Civ. 4th 123.01 and PIK Civ. 4th 123.12, should be given to the jury, with appropriate modifications being made if necessary to avoid confusion for the jury.
4. A physician or surgeon who holds himself or herself out to be a specialist is bound to bring to the discharge of his or her professional duties as a specialist that degree of skill, care, and learning that is ordinarily possessed by specialists of a similar class (in the same field of expertise under similar circumstances), having regard to the existing state of knowledge in medicine or surgery. The specialist possesses a higher degree of skill, care, and learning than that of the average practitioner.
5. A physician who holds himself or herself out as a specialist in certain types of practice is required to have the skill and knowledge common to other specialists in the same field of expertise at the time of diagnosis or treatment.
6. Under the facts of this case, where the jury could have reasonably been misled as to which standard of care to apply to the plaintiffs' claims, the giving of both the specialist and general physician standard of care instructions to the jury constituted reversible error.
7. The best judgment jury instruction, PIK Civ. 4th 123.11, has been used in cases where there is a dispute as to which of two or more courses is to be pursued in administering treatment.
8. A growing number of jurisdictions have eliminated jury instructions with best judgment language because such language injects a subjective standard into a medical malpractice case where the jury should be focused on applying an objective standard of care.
9. Under the facts of this case, where the jury needed to make complex factual determinations before it could be said that there were truly different courses of treatment within the standard of care, the best judgment jury instruction could have served to confuse the jury and should not have been given.
10. Generally, the admission of expert testimony lies within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of such discretion.
11. In a medical malpractice action, where the plaintiffs agree to defense counsel's ex parte contact with treating physicians and explicitly waive any objections to such contact, any argument that defense counsels should not be allowed to contact treating physicians ex parte is not properly before this court. Moreover, the evidence gained during this contact will not be excluded on the basis that it was an improper ex parte contact.
12. The control of discovery is entrusted to the trial court's sound discretion, and orders concerning discovery will not be disturbed on appeal absent an abuse of that discretion.
13. The trial court is vested with broad discretion in supervising the course and scope of discovery. The trial court has discretion on the admission or exclusion of evidence, and the trial court's decision will not be overturned on appeal absent a showing of abuse of that discretion.
14. In order to preserve an issue for appeal, a party must make a timely and specific objection.
15. A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground.
16. When a party alleges that an order in limine has been violated, the trial court must determine (1) whether the order has been violated and, if so, (2) whether the party alleging the violation has established substantial prejudice resulting from that violation.
17. Because a trial court is in the best position to determine whether a violation of an order in limine occurred and to determine the degree of prejudice any violation may have caused, the trial court's determination on these matters will not be disturbed absent a clear abuse of that discretion.
18. An admonition to the jury normally cures the prejudice from an improper admission of evidence.
19. Under the facts of this case, the trial court's decision to admonish the jury and to strike the testimony that violated the order in limine, as requested by the plaintiffs, cured any substantial prejudice that resulted from the isolated statement.
Appeal from Sedgwick District Court; WILLIAM SIOUX WOOLLEY, judge. Opinion filed September 11, 2009. Reversed and remanded with directions.
W.J. Fitzpatrick, of Fitzpatrick and Bass, of Independence, and Douglas A. Buxbaum and John M. Fitzpatrick, of Buxbaum, Daue & Fitzpatrick, PLLC, of Missoula, Montana, for appellants.
Michael R. O'Neal and Shannon L. Holmberg, of Gilliland & Hayes, P.A., of Hutchinson, for appellee.
Kyle J. Steadman, of Foulston Siefkin, LLP, of Wichita, for amicus curiae Kansas Association of Defense Counsel.
James R. Howell, of Prochaska, Giroux & Howell, of Wichita, and David R. Morantz and Matthew E. Birch, of Shamberg, Johnson & Bergman, of Kansas City, Missouri, for amicus curiae Kansas Association for Justice.
Before GREENE, P.J., PIERRON and GREEN, JJ.
GREEN, J.: In this medical malpractice case, Keely Foster, a minor, through her parents and natural guardians, Kim Foster and Kevin Foster (collectively the Fosters), and individually on their own behalf appeal from a jury verdict rendered in favor of Dr. Michelle Klaumann. In addition, the Fosters appeal from the trial court's judgment denying their motion for a new trial. This case turns on the giving of two jury instructionsthe general physician standard of care instruction and the "best judgment instruction." We determine that the giving of both the specialist and the general physician standard of care jury instructions likely confused the jury and affected its verdict in the case. Moreover, based on the factual issues that needed to be resolved in this case, the giving of the best judgment jury instruction could have served to confuse the jury by injecting subjectivity into a standard of care that is supposed to be objective. The giving of those two jury instructions constitute reversible error under the particular facts of this case. Accordingly, we reverse and remand for a new trial.
The Fosters also raise several other arguments, including that the trial court erred in admitting expert witness testimony, that they were substantially prejudiced by a violation of the trial court's order in limine, that the trial court erred in refusing to give a modified informed consent instruction to the jury, and that the jury's verdict was contrary to the law and evidence. We find no reversible error on those issues.
Hereditary Condition
Keely suffered from a hereditary condition called multiple hereditary exostosis, which is also called multiple hereditary osteochondromas. With this condition, bumps made of bone and cartilage grow around the ends of the long bones of the body. The osteochondromas typically grow until the child stops growing. With this condition, the osteochondromas can cause pain; cosmetically unacceptable growths; discrepancies in arm and leg lengths; "knock-kneed" or "bowlegged" legs; and joint dislocation. Keely's mother, grandfather, uncles, and cousins all suffered from this hereditary condition. Kim Foster and her family members have previously had surgeries to remove osteochondromas.
Dr. Klaumann's Care and Treatment of Keely
Kim first took Keely to see Dr. Klaumann, a pediatric orthopedic surgeon, in April 1999 about osteochondromas on Keely's legs and shoulder. Keely was 5 years old at the time. Dr. Klaumann practiced with Advanced Orthopedic Associates and was board certified and recertified in her specialty. Dr. Klaumann had several patients who she regularly treated with multiple hereditary osteochondromas.
At the April 1999 visit, Dr. Klaumann took x-rays and examined Keely. Dr. Klaumann recommended that Keely schedule another appointment in about 6 months. Keely had medical appointments with Dr. Klaumann at least once a year between 1999 through 2004.
During a visit in May 2004, Keely complained to Dr. Klaumann about pain in her left fibula. During this visit, Dr. Klaumann took x-rays, which revealed a mass on Keely's tibia and fibula. On March 23, 2005, Kim took Keely to see Dr. Klaumann due to pain in Keely's knee. Keely had been having pain in her knee for 2 to 3 months whenever she walked up the stairs or rode her bike. In addition, Keely had been having pain in her left femur whenever her brother crawled on her lap. Keely had been taking over-the-counter pain medications on a daily basis.
Upon taking x-rays at the March 23, 2005 visit, Dr. Klaumann noticed that the osteochondromas around Keely's hip and knee were larger and that Keely also had a large hook-shaped osteochondroma between the tibia and fibula. Although Dr. Klaumann was unable to palpate the hook-shaped osteochondroma, Keely felt tenderness and experienced pain in that area. Dr. Klaumann was concerned that the hook lesion might be involved with the peroneal nerve. Keely had good range of motion and did not have any numbness, tingling, or weakness in that area.
At this visit, Dr. Klaumann recommended that Keely undergo surgery to remove the osteochondromas over her lateral femur, the hook-shaped one between her tibia and fibula, and the one on her fibula. Dr. Klaumann told Kim that the hook-shaped osteochondroma could be pressing against a nerve. Kim testified that she asked Dr. Klaumann what would happen if they did not do surgery, and Dr. Klaumann told her that the osteochondroma could eventually press the two bones apart and that Keely could lose her foot. According to Kim, she understood that Dr. Klaumann was only going to remove two osteochondromas during the surgery. Kim testified that Dr. Klaumann never told her that one of the risks of surgery was permanent nerve injury.
May 19, 2005, Surgery
Keely underwent surgery to remove the osteochondromas on May 19, 2005. The day before surgery, Dr. Klaumann faxed a document to the hospital pertaining to Keely's history and physical examination. In order to perform surgery at the hospital, Dr. Klaumann had to submit the document. Part of the document contained a checklist with one of the items being that Dr. Klaumann had discussed the risks, benefits, alternatives, and complications with Keely. Dr. Klaumann checked the item and wrote "with mom." According to Dr. Klaumann, she answered the questions on that document based on her conversations with Kim at the March 23, 2005, appointment.
According to Kim, Keely continued experiencing pain in her knee right up until the surgery. Just before surgery, Dr. Klaumann spoke with Kim, and the decision was made to remove another osteochondroma on the proximal tibia. Thus, the plan on the morning of surgery was for Dr. Klaumann to remove five osteochondromas (instead of four) in three incisions (instead of two). Dr. Klaumann testified that she talked with Kim again about the risks of surgery, especially the risk of nerve damage in removing the osteochondroma between the tibia and fibula.
On the other hand, Kim testified that Dr. Klaumann never discussed the risks of surgery with her. Kim acknowledged that just before the surgery, the anesthesiologist had gone over the risks of anesthesia with her and had her sign a consent form. Kim further acknowledged that she had signed a surgical consent form given to them by a receptionist at the registration desk on the morning of surgery. Part of the surgical consent form contained a paragraph that the nature of the ailment; the nature and purpose of the proposed procedure; the possible alternative procedures; the risks of unfortunate results, possible complications, and unforeseen physical conditions within the body; and the possibility of success had been explained. Nevertheless, the receptionist did not discuss the risks of surgery with Kim or her husband. Kim testified that if Dr. Klaumann had told her that a risk of the surgery was permanent nerve injury, she would have taken Keely for a second opinion.
Keely's Postoperative Care
Kim testified that immediately after the surgery, Dr. Klaumann told her that she had removed five osteochondromas, that Keely was doing well, and that she "really had to stretch that nerve to get that one tumor out." Later, after Keely had been in the recovery room, Dr. Klaumann told Kim that she had been unable to get Keely to move her left foot and reiterated that she "really had to stretch that nerve" during the surgery. According to Kim, Dr. Klaumann called her three times during the week following the surgery to check if Keely could move her toes or wiggle her foot.
Kim testified that during one of Dr. Klaumann's phone calls, Dr. Klaumann stated that she "really had to stretch that nerve" but did not think she had damaged anything. Kim asked Dr. Klaumann when they would know if there had been damage, and Dr. Klaumann responded that only time would tell. According to Kim, she asked Dr. Klaumann if she should take Keely to another specialist, but Dr. Klaumann did not recommend that Kim do so. Dr. Klaumann indicated that there was not a window of opportunity to fix the nerve.
On May 26, 2005, Kim took Keely in for an appointment with Dr. Klaumann because Keely was still unable to feel her foot. Keely could move her toes and put her foot down but could not dorsiflex (move up) her foot. At that visit, Dr. Klaumann gave Keely a black boot to keep her from dragging her toes. Dr. Klaumann told Kim that Keely had a stretch injury and that she wanted to see Keely again in a month. During the weeks to follow, Keely was still unable to dorsiflex her foot and was barely able to evert (move out) her foot. Dorsiflexion is controlled by the deep peroneal nerve while eversion is controlled by the superficial peroneal nerve. Keely did not have dorsiflexion or eversion problems before the May 2005 surgery.
Keely saw Dr. Klaumann again on June 23, 2005. At that visit, Dr. Klaumann gave Keely orders for physical therapy. In addition to undergoing physical therapy, Keely saw Dr. Shah, a neurologist, in July 2005. Dr. Shah performed nerve conduction testing on Keely. According to Kim, based on the results of the nerve conduction test, Dr. Shah told her that Keely's nerve was dead and that she had a month to get Keely to a nerve specialist.
Based on Dr. Shah's statements, Kim made an appointment for Keely with Dr. Rahul Nath, a nerve specialist, in Houston, Texas, with surgery tentatively scheduled on August 23, 2005. Dr. Klaumann saw Keely again on August 1, 2005. After the appointment, Dr. Klaumann talked with Dr. Shah. Dr. Shah had documented that Keely had some eversion in her left foot, which she did not have in June, and also that her sensation was intact. According to Dr. Klaumann, Dr. Shah said that he wanted to discuss the improvements with Dr. Nath. Dr. Shah later canceled Keely's surgery with Dr. Nath.
Keely saw Dr. Dwight Lindholm, a neurologist, on August 18, 2005. At that visit, Keely was unable to dorsiflex her foot and could not extend any of her toes on her left foot. Keely was able to evert her foot slightly but not to full eversion. The next day, Dr. Lindholm did nerve conduction testing. Dr. Lindholm tested all four of the muscles controlled by the deep peroneal nerve but was unable to get any response. Dr. Lindholm did not see anything during the nerve conduction testing that would suggest to him that Keely's deep peroneal nerve was functioning. According to Dr. Lindholm, the nerve conduction testing confirmed what he had suspected during his physical exam of Keely, which was that the left deep peroneal nerve was either severed or severely injured so that it was unable to function. The left superficial peroneal nerve, which controlled eversion, was in the process of recovering. Based on his findings, Dr. Lindholm recommended that they proceed with surgery with Dr. Nath as soon as possible in order to have the best chance of recovery.
August 23, 2005, Surgery
Dr. Nath saw Keely in his office on August 22, 2005, the day before her surgery. During his physical examination of Keely, Dr. Nath found that Keely had complete footdrop (was unable to dorsiflex her foot) on her left side but that she was able to slightly evert her foot. Based on those clinical findings, Dr. Nath categorized Keely's injuries as a complete deep peroneal nerve injury and a partial superficial peroneal nerve injury.
Keely's surgery was performed by Dr. Nath on August 23, 2005, and was initially an exploratory surgery. After locating the peroneal nerve, Dr. Nath performed nerve conduction testing directly on the beginning point of the deep peroneal nerve and the tibialis anterior muscle, the muscle that controls dorsiflexion. According to Dr. Nath, he was able to see a tiny bit of activity in the tibialis anterior muscle when the nerve was stimulated at 33 milliamps. Nevertheless, Dr. Nath testified that the normal kind of stimulation that he performs is 1 or 2 milliamps, so the stimulation at 33 milliamps was probably just a direct current effect along the fluid or blood. Based on these findings, it was determined that Keely's deep peroneal nerve was completed denervated.
Dr. Nath then proceeded to remove scar tissue and locate a tiny stump of the deep peroneal nerve, which was within the tibialis anterior muscle. Dr. Nath discovered that there was extensive scarring to the deep peroneal nerve and that it could not be connected to another normal nerve that was located higher in Keely's body. In addition, Dr. Nath removed a traumatic neuroma from Keely's nerve. According to Dr. Nath, a traumatic neuroma is caused by direct injury and usually takes several weeks to form. Dr. Nath's testimony indicated that later pathology testing on the traumatic neuroma indicated that Keely's injury was a complete injury.
During the surgery, Dr. Nath concluded that a nerve graft would not be an appropriate surgery based on the severity of Keely's injury. Dr. Nath talked with Keely's parents and told them about some surgical options. Dr. Nath told Keely's parents that the best chance to get movement would be to reroute part of the superficial peroneal nerve into the deep peroneal nerve. The risk with that surgery was that it would not work for Keely, given the extent of her injury, and that she would have a higher chance of losing the movement that she did have. Keely's parents decided against that procedure and instead decided on a partial superficial peroneal nerve transfer to try to preserve Keely's eversion.
With this procedure, Dr. Nath spliced off a small segment of Keely's superficial peroneal nerve and relocated it into the bottom end of her transected deep peroneal nerve. Dr. Nath testified that although the chance of success with this procedure was 90 percent in most cases, it would be much less in Keely's case due to the severity of her injury. According to Kim, she understood that there was a 30 percent chance that the procedure might not work. Dr. Nath explained that the traumatic neuroma and the scarring extended farther down the length of Keely's nerve than most injuries.
Dr. Nath testified that he had taken care of hundreds of nerve stretch injuries and that Keely did not have a stretch injury to her deep peroneal nerve. According to Dr. Nath, Keely's injury "was a complete transection type of injury to the deep peroneal nerve." Dr. Nath's opinion that Keely suffered a complete transection injury to her deep peroneal nerve was based on the electrical testing during the surgery and the fact that Keely was unable to dorsiflex her foot, that the nerve was scarred and thickened, and that there was a traumatic neuroma on the nerve.
Dr. Nath testified that when there is an acute severe injury to a peripheral nerve, the chances of recovery are better with earlier treatment. Dr. Nath's opinion was that when there is a loss of function to a nerve immediately after surgery, the injury should be explored immediately.
Approximately 1 year after the August 2005 surgery, Dr. Nath spoke with Kim and learned that Keely's peroneal nerve function had not improved. Dr. Nath indicated that it was unlikely that any useful function would return to Keely's deep peroneal nerve. Dr. Nath recommended to Kim that Keely be evaluated for a tendon transfer. Dr. Nath explained that in a tendon transfer procedure, the posterior tibial tendon is cut and rerouted to the front of the ankle and hooked to the bones or tendons at the front of the foot. According to Dr. Nath, this procedure should improve Keely's resting foot position and possibly eliminate the footdrop.
When the trial occurred in this case, Keely was in eighth grade and had not yet undergone the tendon transfer. Keely was still unable to dorsiflex her foot and still experienced footdrop. Keely testified that she had a brace but she preferred not to wear it because it was uncomfortable and embarassing. Keely further testified that she no longer rode a bike because she could not keep her foot on the pedals, that she no longer roller skated because of her foot problem, that her foot caused her to trip, and that she could not wear flip flops. Keely still had about 10 osteochondromas in her body.
Commencement of Lawsuit
In May 2006, the Fosters sued Dr. Klaumann on claims of medical malpractice. The following claims ultimately went to the jury: (1) that Dr. Klaumann failed to give and document an appropriate informed consent for osteochondroma removal surgery; (2) that Dr. Klaumann surgically removed osteochondromas without proper indication; (3) that Dr. Klaumann failed to appropriately identify and protect neurovascular structures during the operation; (4) that Dr. Klaumann caused a functionally complete and permanent injury to Keely's deep peroneal nerve and partially injured her superficial and common peroneal nerve; and (5) that Dr. Klaumann failed to properly and timely treat Keely's nerve injury and to refer Keely to a doctor who specialized in nerve injury.
Defense Expert Dr. Mackinnon
Kim took Keely to St. Louis to see Dr. Susan Mackinnon in July 2006 after Kim had read an article in U.S. News & World Report about a nerve transplant procedure that Dr. Mackinnon had performed. Dr. Mackinnon saw Keely for one 15-minute appointment; apparently, a nerve transplant was not an option based on the fact that Dr. Nath had already performed the nerve transfer surgery. Dr. Mackinnon referred Keely to an orthopedic foot doctor for an evaluation for a tendon transfer.
Over the Fosters' objection, Dr. Mackinnon testified as an expert witness for Dr. Klaumann at trial. Dr. Mackinnon testified that in her opinion, Dr. Klaumann had not deviated from the standard of care. Dr. Mackinnon testified that when getting a tumor out that is between two branches of the peroneal nerve, the surgeon has to use retractors, which can cause the nerve to go to sleep for a period of time or forever. Dr. Mackinnon disagreed with Dr. Nath's conclusion that there had been a clear transection to Keely's deep peroneal nerve. Instead, according to Dr. Mackinnon, Dr. Nath's findings were consistent with a retraction or stretch injury to the deep peroneal nerve.
Dr. Mackinnon's opinion was that Dr. Klaumann had complied with the standard of care in her postoperative management and follow-up of Keely. According to Dr. Mackinnon, after Dr. Shah had done the electrical study 6 weeks following the May 2005 surgery and part of the nerve seemed to be getting better, the appropriate standard of care was to follow the nerve along instead of surgically evaluating the nerve again in the early postoperative period. Dr. Mackinnon testified that doing a surgical evaluation very soon after the first surgery could actually make things worse based on the amount of scar tissue. Dr. Mackinnon indicated that sometimes a nerve will not work immediately postoperatively when a surgeon takes a tumor out from within the nerve and uses retractors on the nerve, even when the surgeon has observed that the nerve is intact. According to Dr. Mackinnon, it is within the standard of care to observe the nerve for 3 months to see if there is evidence of the nerve getting better. At that point, if the nerve is getting better, the nerve should be followed and electrical studies should be repeated. If things do not look better, then a decision to operate should be made.
Plaintiffs' Expert Dr. Yassir
Dr. Walid Yassir, the chief of pediatric orthopedics and scoliosis surgery at Tufts New England Medical Center, testified as an expert witness for the Fosters. Dr. Yassir's opinion was that Dr. Klaumann had not complied with the standard of care as to the indications (reasons) for surgery. Dr. Yassir testified that Dr. Klaumann's decision-making process in performing the surgery had been poorly documented. Although Dr. Klaumann had testified in her deposition that there had been some widening in the joint spaces between Keely's tibia and fibula in her left leg, Dr. Yassir pointed out that the widening in the right leg was actually much larger.
Dr. Yassir noted that Dr. Klaumann's stated reason for the operation was pain in certain areas. Nevertheless, Dr. Yassir indicated that Dr. Klaumann could not diagnose whether a growth was impinging on one of the nerves by simply looking at x-rays. Dr. Yassir testified that in order to make a definitive diagnosis as to whether a growth was impinging on a nerve, a doctor could do a CAT scan, an MRI, or nerve conduction testing. Dr. Yassir further testified that a physical exam would be another way to determine whether a growth was impinging on a nerve. Dr. Yassir pointed out, however, that Dr. Klaumann's physical exam revealed that everything was working normally in Keely's leg before the surgery. According to Dr. Yassir, it was never proven by appropriate medical testing that the osteochondroma between the fibia and the tibula was actually causing a problem. Dr. Yassir testified that in a situation like the present case, there should be documentation that the osteochondroma is causing a major problem because the surgery is so dangerous.
Dr. Yassir testified that there was no documentation in Keely's medical records that a meaningful informed consent discussion had taken place with Dr. Klaumann before Keely's surgery. According to Dr. Yassir, the document offered by Dr. Klaumann to show that she had discussed the risks of surgery with the Fosters was inadequate. Dr. Yassir indicated that in order to prove informed consent, a doctor needs to enumerate the risks and benefits, the alternatives, and the possible complications of the surgery. According to Dr. Yassir, based on the type of surgery that was performed on Keely, the standard of care would require Dr. Klaumann to disclose the risk of permanent injury to the peroneal nerve.
Dr. Yassir's opinion was that Dr. Klaumann's surgical care was substandard. Dr. Yassir explained that his opinion was based on the fact that Keely woke up with a complete deep peroneal nerve injury, which was later shown to be a transection injury. Dr. Yassir testified that cutting the deep peroneal nerve is an option only when a patient's anatomy is so distorted that the surgeon could not tell where structures were or when the tumor was part of the nerve itself. Dr. Yassir theorized that Dr. Klaumann had transected the nerve with an osteotome, which was used as a chisel during the operation. Dr. Yassir pointed out that Dr. Klaumann's operative note looked like Keely's surgery had been a textbook performance of a straightforward operation and did not reflect her concerns that she had voiced to Kim about stretching the nerve.
Dr. Yassir testified that Keely's injury was probably a sharp transection injury but acknowledged that it could have been a retraction injury so severe as to cause essentially a transection. According to Dr. Yassir, the fact that Dr. Nath found a traumatic neuroma on the nerve showed that there was either a transection or a very severe injury.
Other Defense Evidence
Dr. Eric Jones, a pediatric orthopedist at West Virginia University, testified that he had been taking care of patients with multiple hereditary osteochondromas for the last 30 years. Dr. Jones estimated that he operated on about 15 to 20 of those patients each year. Dr. Jones' opinion was that Dr. Klaumann complied with the standard of care in this case.
Dr. Jones testified that almost every orthopedist who operates around the peroneal nerve would have a discussion with the patient and family that there might be a peroneal nerve injury following the surgery. Dr. Jones further testified that based on his review of the documentation stating that Dr. Klaumann had discussed the risks and benefits of the surgery with Keely's mother, his assumption was that Dr. Klaumann had talked to her about possible peroneal nerve injury.
According to Dr. Jones, a self-retained retractor, which was used by Dr. Klaumann on Keely, can cause possible injury to a nerve without the surgeon realizing it at the time of the procedure. Dr. Jones testified that if a nerve is cut, it is much better to fix it immediately because there is a better chance of function returning to the nerve. On the other hand, if a nerve is stretched and intact, there is no reason to go back in surgically until possibly 3 or 4 months later. Dr. Jones' opinion was that the most likely cause for Keely's injury wa