SHREVEPORT, La. (Legal Newsline) – A Louisiana appeals court has revived the lawsuit of a man who says bone was wrongfully taken from his knee during arm surgery.
Judge Jay McCallum, who is running for state Supreme Court, authored the Second Circuit Court of Appeal’s opinion in Gary Nordgren’s case against Louisiana State University Health Sciences Center-Shreveport and other health care providers.
He was incarcerated in 2012 and exercising, but his upper arm bone broke while he was performing triceps dips. He had been shot in that arm years earlier.
Casts didn’t work, so surgery was performed. An informed consent form said there was a possible use of bone autograft, allograft or other bone substitute.
Nordgren believes his doctor said bone might be taken from his hip, but the doctor said that wasn’t the case. Nordgren was told bone from a part of the body where it is less needed might be grafted on his humerus.
When he woke up, he found that bone had been taken from his right knee. An infection also developed in his knee.
A medical review panel said any damage from any breach was actually caused by the infection – a known complication of any surgical procedure. But the panel ruled there was an issue whether Nordgren was told the graft would come from his hip.
The trial court found there was “accurate informed consent” in granting the State of Louisiana’s motion for summary judgment, but that decision has now been reversed.
“A genuine issue of material fact surrounds whether Dr. Jaeblon misrepresented to Nordgren that his hip would be the harvest site,” Judge McCallum wrote. “If Nordgren can establish this fact at trial, he will defeat the statutory presumption that his consent was valid and effective.”
Another issue of fact that remains is whether a reasonable patient would have consented to the arm surgery if they were told bone might be taken from their knee.