After 11 long hours of deliberation over a two-day period, the Culpeper jury charged with deciding the outcome of a $1 million medical malpractice civil lawsuit against prominent Culpeper orthopedic surgeon Dr. Robert Rutkowski resulted in a hung jury Thursday evening.
“We are all in agreement that we are at a standstill,” read a handwritten note to Judge Susan L. Whitlock in Culpeper County Circuit Court. “We feel that we are still far apart.”
The six-member jury of three women and three men included a landscaper/mason, registered nurse for an urgent care facility, LPN for a physical therapy office and a truck driver.
This jury was responsible for deciding Rapidan resident Carol Nettles’ civil claim against Rutkowski, part owner of the Virginia Orthopaedic and Spine Center in Culpeper, in which she claims the Oct. 26, 2011 clavicle surgery left her suffering with severe and permanent injury and pain to her left collarbone and disfigured left shoulder.
The noticeable injury impedes Nettles’ ability to wear a purse strap on her left shoulder.
Two years ago this month, 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.
Instead, Dr. Rutkowski used surgical sutures to hold the plate in place.
According to court records, the lawsuit 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.
When Nettles continued to complain about the pain, Dr. Rutkowski referred her to Dr. Angelo Dacus, a shoulder surgeon at the University of Virginia Medical Center in Charlottesville, who removed all of the hardware in December 2011.
During Wednesday’s closing arguments, Bob Donnelly, defense attorney for Dr. Rutkowski, said Dr. Robert Zura of Duke University was the most credible witness.
“Dr. Zura was perfectly impressed and endorsed this procedure,” said Donnelly. “This technique is recognized, used and taught. This is not chewing gum and paper. This was a perfectly appropriate fixation technique. The interlocking plates were state-of-the-art. In fact, you can stick it into an apple and we all know an osteoporotic bone is more stable than an apple.”
Dr. Jeff Garske of South Carolina testified for the plaintiff Tuesday, saying this particular clavicle surgery had a 100 percent chance of failure.
“The sutures acted like a cheese cutter and cut through her soft bones,” he said. “They created multiple fractures in her bones.”
In his closing arguments, Greg Webb, defense attorney for Nettles, said there are rules for doctors.
“It doesn’t matter if you are an important person [or] doing good work, if you are careless and you hurt someone, you are responsible for all the damage you caused. If you are careless and hurt someone, you are responsible for all damages,” he argued. “Do not use an unreasonable surgical technique if you do operate.”
During Wednesday’s appeal to the jury, Webb reduced his client’s asking amount to $538,000 for previous and future pain and suffering.
Before informing the judge about being deadlocked, the jury presented the court with five questions:
» Why did Dr. Rutkowski not note in the operative report that he attempted to place screws in the distal portion of the clavicle without success?
» What does Dr. Rutkowski define as uneventful as stated in the operative report?
» Why didn’t Dr. Rutkowski notify Mr. or Mrs. Nettles during or after the surgery that all the screws could not be placed and sutures were used?
» Why didn’t Dr. Rutkowski discuss putting sutures in after the surgery as an accepted technique and would be used if needed?
» Did Dr. Rutkowski provide the risks of using sutures and were they noted on the consent form that was signed by Mrs. Nettles, if not, why?
After quickly reading all five questions from the jury, Whitlock said the court was unable to answer any of them because they are considered part of the evidence.
“The court can’t answer these questions because the evidence is in,” she explained before sending them back into the jury room.