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Bindhammer v. Cubelli

October 25, 2007


On appeal from Superior Court of New Jersey, Law Division, Morris County, L-2909-02.

Per curiam.


Argued September 17, 2007

Before Judges Weissbard, S.L. Reisner and Baxter.

Defendants Ken Cubelli, M.D. and Morris County Orthopedic Group, P.A. appeal from the denial of their motion for a new trial in a medical malpractice suit that resulted in a molded verdict of $1,600,000 in favor of plaintiff Linda Bindhammer. We affirm.


On May 19, 2001, following a fall at her home, plaintiff sustained a left tibial plateau fracture and a closed left shoulder fracture. After initial treatment at Dover General Hospital, she was transferred to St. Clare's Hospital. Dover was able to set plaintiff's shoulder; however, it did not have the facilities to perform surgery on her leg.

Dr. Cubelli treated plaintiff's leg fracture at St. Clare's after she was initially seen by Dr. Capecci, Dr. Cubelli's partner. On May 21, 2001, Dr. Cubelli performed an open reduction and set the fracture with internal fixators and bone grafting. Plaintiff was discharged from the hospital on May 25, 2001, and transported to the Troy Hills Center for Rehabilitation for the purpose of post-surgical rehabilitation.

Dr. Cubelli continued to care for plaintiff throughout her initial stay at Troy Hills.

It was alleged that, while at Troy Hills, plaintiff's left leg had an open wound that showed signs of infection, including drainage and redness. According to plaintiff's expert, Dr. Cubelli failed to order an infectious disease consultation or a deep wound culture, as required by the relevant standard of care.

On July 22, 2001, plaintiff was readmitted to St. Clare's and diagnosed with a serious bone infection. At that time she was unable to walk and was in pain. Plaintiff's infectious disease specialist, Dr. Allegra, noted that plaintiff's wound had longstanding drainage, and he ordered a deep wound culture.

The culture revealed a heavy growth of methicillin-resistant staphylococcus aureus, also known as MRSA. The delay in diagnosing the infection and plaintiff's subsequent development of osteomyelitis resulted in plaintiff undergoing numerous surgical procedures from July 24, 2001 to June 25, 2003.

Initially, at St. Clare's from July 22, 2001 to August 7, 2001, the internal fixators were removed from her leg and she was placed on IV antibiotic treatment. She was readmitted to St. Clare's from November 14, 2001 to November 25, 2001, due to a flare-up of the infection and again placed on IV antibiotic treatment, followed by placement of an external fixator and multiple skin grafts. In addition, plaintiff underwent the following procedures to treat and eradicate the infection: (1) incision, drainage debridement of infected non-union on January 1, 2002; (2) irrigation and debridement, placement of external fixator, and placement of antibiotic bead patch on January 5, 2002; (3) irrigation and debridement and change of antibiotic beads on January 7, 2002; (4) irrigation and debridement, split thickness skin graft, gastroc rotation muscle flap on January 11, 2002; (5) irrigation and debridement of necrotic muscle flap on January 23, 2002; (6) revision of external fixator and debridement on January 24, 2002; (7) free latissimus dorsi muscle flap with a micro vascular anastomosis on January 25, 2002; (8) revision of venous anastomosis, exploration of proximal vein, evacuation of hematoma, repair of artery with vein patch, thrombectomy on January 27, 2002; (9) irrigation and debridement, excision of muscle flap on January 29, 2002; (10) revision of left tibial external fixator, rotation flap with rearrangement and irrigation and debridement split thickness skin graft on February 1, 2002; (11) inferior vena cava filter in February 2002; (12) revision of external fixator on February 13, 2002; (13) irrigation and debridement and open treatment of an allograft of tibial non-union on January 22, 2003; (14) irrigation and debridement with revision of external fixator on February 15, 2003; and (15) removal of the external fixator on June 25, 2003.

Plaintiff's liability expert, Dr. Dunn, concluded that if Dr. Cubelli had acted appropriately by obtaining an infectious disease consultation and deep wound culture on June 27, 2001, plaintiff would not have developed osteomyelitis and would not have required the numerous surgical procedures that followed. In addition, she would not have been left with a permanent disability.

Dr. Dunn examined plaintiff on February 16, 2005. At trial, he described large areas of scarring on her left leg due to her injury and the subsequent infection, as well as along her lower back and thigh due to skin and muscle grafts. Plaintiff does not have a full range of motion in her left ankle; she has hypersensitivity on the bottom of her foot; she has complaints of pain for which she has taken OxyCotin and Elavil; she has difficulty walking up and down stairs, carrying objects, kneeling, standing, sleeping and exercising; she also uses a cane for walking outside her home.

The defense experts testified that plaintiff did not exhibit signs of infection after her transfer to Troy Hills so as to require Dr. Cubelli to perform a deep wound culture and/or obtain an infectious disease consult. By its verdict, ...

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