• Taking Chances2:24

In 1991, Ron Morris, a successful wide receiver for the Chicago Bears, was sidelined with a knee injury. Knee injuries are common for football players, especially wide receivers, and they are often repaired through arthroscopic surgery.

Morris returned to play five weeks after his surgery but his knee continued to plague him. Two seasons later, after only sporadic play, he failed his team physical and was not re-signed by the Bears. Morris filed suit, alleging that his surgeon had negligently damaged his knee during the repair and, knowing this, the surgeon should have warned him to take extra time recovering.

During Morris' surgery, his left medial femoral condyle was injured. The surgeon admitted that he came into contact with this area, but only minimally, which is known to happen during these procedures. The operative report and the surgeon's discussion with the patient did not reveal this potential complication, however. A later amendment by the surgeon to the operative report was ambiguously worded and made it sound like the articular cartilage damage had pre-existed the surgery. In fact, at trial, the surgeon testified that the extensive damage to Morris' knee was caused by years of stress and trauma to the joint from playing football, and not from the minor injury occurring during the surgical procedure.

Experts for Morris testified that the femoral condyle was gouged, and this serious damage revealed that the surgeon fell below the standard of care. They also claimed that the surgeon allowed Morris to return to play too early in light of this complication, causing further damage to Morris' knee. They asserted that if the surgeon had recognized the severity of the injury and required a longer recovery period, he would have prevented the degenerative arthritis that ended Morris' football career.

The jury decided the case in favor of Morris, awarding him $5.3 million dollars for pain and suffering, and for lost wages due to his shortened playing career.

In most operative procedures, there are known risks which can materialize even in the absence of any error in surgical technique or judgment. The case of Ron Morris illustrates what is and is not expected of a surgeon when risks materialize and the patient suffers injury. First, a physician who is aware of an incident during surgery should record it in the operative report promptly, accurately, and clearly. The surgeon should not editorialize or speculate in the operative report, limiting comments to the course of events during the procedure. In the Morris case, the surgeon's failure to report the complications until another physician was being consulted made him vulnerable to questions about the accuracy and veracity of the entry.

Second, the physician should inform the patient and the patient's family of the occurrence when describing the outcome of the procedure. If a complication requires further treatment or causes possible side effects, then the patient should be told about this as well. These conversations should be documented in the medical record. Again, in the Morris case, Ron Morris reported that he did not find out about the extent of the damage to his knee until he consulted a second surgeon.

Finally, the physician should facilitate additional consults quickly when they are appropriate, especially when the patient requests them. Cooperation helps the physician and patient to maintain a good relationship and engenders trust.

When, for whatever reason, information is not included in the original operative report, adding it later may be necessary. Adding information correctly can help a physician avoid further problems. The original operative report normally should not be replaced. Optimally, a physician should add only information that is important for the care of the patient and should mark it clearly with the date of the addition. Entries intended primarily to create a defense or rationalize behavior are often inappropriate. A physician considering adding information to a patient's record, especially if a case has taken a turn for the worse, will often benefit from advice from hospital administration.

This damage award may seem quite large. The surgeon's expert testified that the career of a wide receiver is commonly shortened by knee injuries, and the average length of playing time in the pros for that position was three years. Morris had already exceeded this average in his career. However, other testimony regarding Morris' earning capacity did support the multi-million dollar award. The jury obviously accepted the testimony of the plaintiff’s expert that Morris' career was shortened due to the surgical mishap.

Accurate and forthright reporting of injuries or complications enhances the alliance between the patient and physician. In some cases, this additional level of trust may help prevent a lawsuit. However, if a patient sues despite these efforts, the physician's candor and follow through will go a long way toward making the case defensible.

Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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Famous Plaintiff: Large Award

by Attorney Frank E. Reardon

August 1996