EXCLUSIVE: Culpeper jury in place for $1M medical malpractice case - Star Exponent: Local News

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Wednesday, September 17, 2014

EXCLUSIVE: Culpeper jury in place for $1M medical malpractice case

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Posted: Monday, September 30, 2013 1:26 pm | Updated: 5:33 am, Tue Oct 1, 2013.

UPDATE:

Expert: Clavicle surgery was unnecessary

A medical expert declared Monday that a reported botched clavicle surgery performed on a Rapidan woman in October 2011 was deemed to fail and likened the procedure to an unsuccessful attempt to insert a screw into soft, unstable drywall.

“It’s impossible,” said Dr. Edward G. McFarland, department vice-chair of adult orthopedics at Johns Hopkins School of Medicine in Baltimore, testifying in Culpeper County Circuit Court that trying to repair a clavicle as “one of the most difficult fractures to fix on the planet.

McFarland was providing his professional advice on behalf of Carol Nettles, now 69, in her $1 million medical malpractice civil lawsuit against Dr. Robert Rutkowski of the Virginia Orthopaedic and Spine Center in Culpeper in which she claims the Oct. 26, 2011 surgery left her suffering with severe and permanent injury and pain to her left collarbone and a deformed left shoulder.

“Dr. Rutkowski failed in two areas: His assessment and in the manner in which the surgery was performed,” McFarland declared.

Day one of the four-day jury trial started Monday with the placement of three women and four men on the jury ultimately responsible for deciding the outcome of this case.

Nearly two years ago, Dr. Rutkowski performed a carpal tunnel release and repaired Nettles’ left clavicle, which was severed in three places during the 1990s. During the surgery, Rutkowski attempted to implant a six-inch metal plate to stabilize her damaged clavicle, but was unable to screw the plate in place because of the poor condition of Nettles’ bones.

“Despite the fact that the procedure was doomed to fail using this technique, he left the plate in place and attempted to stabilize the end of the plate with sutures rather than screws,” Nettles’ lengthy complaint reads.

Nettles also claims that the sutures acted like a saw and cut the collarbone off at the distal end, leaving her with limited use of her left arm.

According to court records, the lawsuit also states that Rutkowski acknowledged during a Dec. 15, 2011 follow-up visit with Nettles that the distal portion of her collarbone was indeed cut off, but blamed the issue on Nettles’ “extreme osteoporosis” rather than the sutures.

During Monday’s questioning, Christine Thomson, who represents Nettles, asked McFarland at what point the surgery failed, to that, he said, “it was unsuccessful when he closed the skin.”

“There was no chance those sutures would have held that plate,” McFarland opined.

In an effort to question McFarland’s motive for his expert testimony, defense attorney Bob Donnelly of Goodman, Allen & Filetti in Glen Allen, who represents Rutkowski, got McFarland to admit that he charges $1,000 an hour for his services.

“Isn’t it correct that you formulated your opinion before reading Dr. Rutkowski’s deposition?” Donnelly asked, to which McFarland confirmed. “Wouldn’t you be interested in what the physician had to say about this case beforehand?”

“I have since reviewed the deposition, but it hasn’t changed my opinion. The surgery should have never been performed,” McFarland continued.

The plaintiff’s second witness was Dr. Wahid M. Baqaie, co-owner of the Virginia Orthopaedic and Spine Center in Culpeper and one of Dr. Rutkowski’s business partners. Dr. Baqaie testified Monday that he provided a steroid injection for Nettles as a temporary relief before her October 2011 surgery with Dr. Rutkowski.

The plaintiff’s husband John Nettles, was the final witness on Monday, testifying that the surgery left his wife unable to drive and continue her normal, active routine of horseback riding and basic household chores.  

“She hasn’t been the same since. I used to be jealous of how she was able to sleep through anything,” said Mr. Nettles. “Since the surgery, she has not been able to sleep well. Two or three nights a week, she can’t sleep and uses a body pillow to relieve the pain.”

Mr. Nettles, who attended his wife’s doctor’s appointments and waited for her during the surgery, said Dr. Rutkowski estimated both procedures would take about 90 minutes.

“It was double that,” said Mr. Nettles. “I was getting concerned about the time when he finally came out and told me ‘Everything went beautifully. It couldn’t have gone better.”

During Monday’s opening statements, Greg Webb, who also represents Mrs. Nettles, argued that her surgery should have never taken place.

“The surgery caused loss of function and left her with permanent shoulder pain and a sagging shoulder,” Webb said. “It has also disrupted her sleep and she's more dependant on her husband.”

In opposing opening arguments, Angela Boice Axselle, co-counsel for Rutkowski, said Nettles’ defense attorneys must prove negligence in this case.

“Dr. Rutkowski tried to do everything he could to help Mrs. Nettles,” she said. “He was competent and careful, not negligent.”

Nettles was a patient of the Virginia Orthopaedic and Spine Center from June 2011 to December 2011.

Rutkowski, who has worked as a physician in Culpeper for more than 30 years, earned his bachelor’s degree from Williams College and his medical degree from State University of New York in Buffalo. He completed his internship and residency at the University of Pittsburgh.

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A Culpeper jury of three women and four men will decide whether to award $1 million to Rapidan resident Carol Nettles, who claims Dr. Robert Rutkowski of Virginia Orthopaedic Center in Culpeper left her deformed and suffering with pain in her left shoulder and arm following an Oct. 26, 2011 surgery.

This four-day case is expected to wrap up Thursday in Culpeper County Circuit Court.

It took more than three hours Monday to place a jury in this case with seven potential jurors being excused for being a patient or friend of Dr. Rutkowski.

A few were also dismissed based on the discretion of both the defense and plaintiff’s lawyers.

In her civil case, Nettles, 68, accuses Dr. Rutkowski of medical malpractice following a reported botched carpal tunnel release and an open reduction internal fixation on her left clavicle.

In addition to the $1 million medical malpractice civil claim, Nettles is also asking Dr. Rutkowski and his employer to pay for attorney’s fees, costs and pre-judgment interest.

Greg Webb and Christine Thomson of Michie Hamlett Law Firm in Charlottesville will represent Nettles while Angela Boice Axselle and Robert Donnelly of Goodman, Allen & Filetti of Glen Allen will represent Rutkowski.

Judge Susan L. Whitlock will preside over this civil case.

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