U.S. Court of Appeals Affirms Jury Verdict in Favor of Orthopedic Surgeon in Medical Negligence Lawsuit

On June 26, 2014, Dr. Corey Solman performed arthroscopic surgery on the knee of Leslie Grussing. At her follow-up appointment on July 9, 2014, she met with a physician’s assistant and reported swelling in her knee. The physician’s assistant suggested physical therapy.

Dr. Solman did not examine her at that visit. Grussing returned to Dr. Solman’s office on July 18, 2014, again reporting pain and swelling in her knee.

Dr. Solman then removed fluid associated with the swelling from Grussing’s knee and observed that the synovial fluid looked normal. Dr. Solman did not test the fluid for infection.

Grussing continued to experience pain and swelling in that knee. In October 2014, a different doctor aspirated Grussing’s knee and sent the fluid for analysis. The knee was found to be chronically infected.

Grussing underwent a total knee replacement. The principal issue in this medical malpractice lawsuit was whether Dr. Solman deviated from the standard of care when he decided not to test the synovial fluid that was taken out of the knee at Grussing’s July 18, 2014 office appointment.

Grussing opened her case with Dr. Solman’s deposition testimony. The doctor acknowledged that fluid that does not appear cloudy can test positive for bacterial infection. The defendants’ expert, Dr. Matava, testified that there is no way to confirm that Grussing’s knee was infected at that July 18, 2014 visit.

The 8th Circuit Court of Appeals in St. Louis affirmed the defense verdict rejecting arguments that the district court judge erroneously limited Grussing’s attorney’s cross-examination of Dr. Matava during an attempt to elicit testimony that fluid that is not cloudy can test positive for bacterial infection and that the trial court chose not to correct the defendants’ counsel’s misstatement of the law during closing argument.

According to the 8th Circuit Court of Appeals opinion, the correct burden of proof was properly emphasized throughout the trial.

Grussing’s attorneys contended that the district court judge committed reversible error in limiting the cross-examination of Dr. Matava regarding whether normal looking synovial fluid can nonetheless be infected. The attorneys for Grussing argued that had Dr. Matava been able to testify fully, he would have said that normal looking synovial fluid can be infected.

The trial judge relied on another 8th Circuit case, Porshia v. Design Equip. Co., 113 F.3d 877, 881 (8th Cir. 1997) for the proposition that since Dr. Solman’s deposition testimony was such that fluid does not appear to be cloudy can test positive for bacterial infection, that precise evidence that Grussing was hoping to elicit from Dr. Matava was offered by the defendant. The court of appeals found that limiting the questioning on the ground that it was repetitious was harmless error, not reversible error.

In addition, Grussing’s counsel argued on appeal that the defendants’ lawyer argued in closing argument misstatements of the law. The court of appeals ruled that the district court did not abuse its discretion by granting a new trial because of the misstatement of law. The jury instructions correctly instructed the jury regarding the burden of proof before and after closing arguments.

For these and other reasons, the judgment in favor of the defendants was affirmed.

Grussing v. Orthopedic & Sports Medicine Inc. No. 17-2228 (U.S. Court of Appeals for the 8th Circuit, June 12, 2018).

Kreisman Law Offices has been handling medical malpractice lawsuits, orthopedic negligence lawsuits, misdiagnosis of cancer lawsuits, wrongful death cases and birth trauma injury lawsuits for individuals, family and loved ones who have been injured, harmed or killed by the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Gurnee, Crystal Lake, Evanston, Wilmette, Worth, Westchester, Winfield, Waukegan, Joliet, Romeoville, Chicago (Back of the Yards, Austin, North Lawndale, Hegewisch, South Shore, Pullman, Pilsen, Albany Park, Rogers Park, South Loop, Lakeview, Lincoln Park, Old Town Triangle), River Forest, Oak Lawn, Oak Park and Park Forest, Ill.