SEATTLE (Legal Newsline) – A man who developed a chronic infection after surgery can keep his $1.5 million verdict despite arguments he was partly to blame for it, the Washington Court of Appeals has ruled.
The court on Feb. 16 ruled against Proliance Orthopedic Associates’ argument that plaintiff Richard Fortman used nicotine, failed to keep his diabetes under control and bore weight on his ankle after surgery, but the court rejected that.
“If Fortman had alleged that his injury was the development of any infection, this evidence would likely have been sufficient to sustain an affirmative defense of contributory negligence for his acts during treatment,” Judge Cecily Hazelrigg wrote.
“However, Fortman’s complaint shows that the injury he complains of is not the initial infection but the development of chronic osteomyelitis in his left ankle and permanent disability.”
Fortman broke his ankle on June 24, 2015 and underwent surgery. He was discharged a week later to a rehabilitation facility.
Five days in, there were no signs of infection. But in July 14, he fell and landed “with some force” on his affected foot.
Fortman was prescribed a two-week course of Bactrim because of early signs of infection, which escalated in the next few days. After his discharged, he was supposed to continue Bactrim for another month.
Instead, a follow-up appointment determined he had not taken the drug for 20 days, a mistake to which the defendants admitted. His condition fluctuated before being diagnosed with a chronic bone-deep infection that requires lifetime use of antibiotics.
Ultimately, the condition at the center of his allegations is that chronic infection that happened after his Bactrim supply was cut off and not the initial infection a month after surgery.
The trial judge told the jury it could not consider his nicotine use, fall on his foot and diabetes control in that month after the initial surgery.
“Viewing the evidence in the light most favorable to Fortman, there was evidence that Fortman acted with reasonable care after July 27, 2015 and did not contribute to the development of the initial infection into chronic osteomyelitis,” Hazelrigg wrote.
“Fortman testified that his doctors had not directed him to stop using nicotine, that any weight-bearing on his left ankle was accidental, and that his diabetes was under control.”