Skip to main content

Failure to diagnose postoperative infection


On June 9, a 43-year-old woman with persistent left leg pain came to an orthopedic surgeon. As a teenager, the patient had sustained significant injury to her left leg and ankle as the result of two motorcycle accidents. She had required multiple surgeries. The patient had also contracted hepatitis C from a blood transfusion and undergone a liver transplant five months before her visit to the orthopedic surgeon.

Physician action

After examination, the physician noted the retained hardware in the left ankle, Achilles contracture, subtalar degenerative joint disease, and leg length discrepancy of about 3-4 inches. The patient was evaluated for an ankle fusion procedure to be followed by a leg lengthening procedure at a later date. The risks of surgery were discussed with the patient, and the patient was cleared for ankle surgery by the transplant director nearly three weeks later.

The patient was admitted to the hospital on July 20 for removal of the left tibial intramedullary rod, left ankle arthrodesis, left sub patellar arthrodesis, and left tibia bone graft.

The procedure was performed without incident. Intraoperative findings revealed fibrosis around and within the nail and a dislocated peroneal tendon. Due to the patient’s transplant status, she was followed by the transplant team, infectious disease, internal medicine, vascular surgery, and pain management.

Postoperatively the patient was treated with cefazolin. Two days later, the transplant team changed the medication to vancomycin and piperacillin. The patient had a fever and an elevated liver function test. An infectious disease consultation was requested, and that physician changed the patient’s antibiotic to imipenem/cilastatin.

The patient’s bilirubin increased to 4.4 with moderate increases in her transaminases and alkaline phosphatase. The results from a diagnostic workup to identify the source of the fever were negative. Her fever was attributed to a probable foot infection.

The results from a venous Doppler obtained on July 27 were negative. On July 29, the patient was noted to have increased pain in her leg with cyanosis of the second and third toes with ecchymosis. After creating a diagram of the foot illustrating the increasing cyanosis over the second and third toes, the orthopedic surgeon ordered a vascular surgery consult.

The vascular surgeon noted “gangrenous changes of the second, third and fifth toes.” Good pulses were noted with no evidence of vascular disease. A non-operative intervention with elevation of the foot was recommended. The orthopedic surgeon discussed with the patient the possibility that she could lose the three affected toes. He documented that the patient understood the possibility of losing her leg due to her previous severe trauma.

Two weeks after surgery, improvement of the ischemic toes was noted and the patient’s fever had resolved. The patient was discharged home to continue with wound care and IV antibiotic therapy. The discharge was approved by the infectious disease physician, vascular surgeon, and orthopedic surgeon.

While at home, the patient reported that her left leg pain and swelling had increased. On her fifth day at home, the patient was taken by ambulance to a local hospital and then transferred to a larger hospital where she was admitted with a diagnosis of necrosis and cellulitis of the left leg. The orthopedic surgeon was consulted, and he recommended amputation.

The orthopedic surgeon discussed the amputation with the patient and her family. The patient indicated that she was prepared for an amputation, based on previous conversations, and that she had even thought about an elective amputation due to her chronic pain.

On August 12, the orthopedic surgeon performed a left below the knee amputation. The amputation successfully removed the infection, and good healing of the surgical wound was noted. The patient had a low-grade fever for three to four days, which resolved on its own. During this time she was also seen by the infectious disease physician.

Two weeks after the amputation, the patient was discharged with instructions to follow up with the orthopedic surgeon and the transplant service. The patient received a prosthetic leg. Her pain and mobility improved, and she was able to ultimately return to work as a nurse.


A lawsuit was filed against the orthopedic surgeon. Allegations included negligence for discharging the patient with an infection in her foot (wet gangrene). It was further alleged that if the orthopedic surgeon had kept the patient in the hospital, he could have removed the gangrenous toes and prevented the spread of the infection, thus salvaging the patient’s leg and foot.

Legal implications

Physicians who reviewed this case for the defense agreed that the orthopedic surgeon delivered good care. They argued that the patient was not discharged with an infection, but compromised circulation led to the need for the amputation.

The case was taken to trial. While testifying, the defendant was presented with a billing code sheet indicating that he had diagnosed the patient with a foot infection the day of her amputation. This was harmful to the case, as the defendant had previously contended that the reason for the amputation was devascularization due to the prior trauma. He had also stated that had he discharged the patient with an infection, it would have constituted a breach in the standard of care.

Additionally, many of the other physicians involved in the patient’s care had erroneously documented “foot infection” on the chart, which was perpetuated many times throughout the medical record. Three of those physicians testified that they saw the patient’s foot on the day of discharge, and there was no infection. The plaintiff’s attorney used the orthopedic surgeon’s billing code to build his case that the patient was discharged with an infection.


The jury returned a verdict in favor of the orthopedic surgeon.


Risk management considerations

Rarely are billing codes the central issue of a medical malpractice case. Physicians should be aware of the diagnosis they are ascribing when using a code and the severity they choose. Consistent medical record documentation and billing codes may not only be useful in defending a financial claim submitted to an insurance company, Medicare, or Medicaid, it may also be useful in liability defense.

CME credit

To receive two CME credits and the TMLT risk management discount (TMLT policyholders only) for reading this and other similar case studies, please visit