Podiatric surgery and post-surgical care called negligent. Defense verdict. Sacramento County.


Patient says podiatrist didn't respond to symptoms of DVT after negligent surgery.

The Case

  • Case Name: Aaron Hiatt v. Roy Rubin, M.D., Inc. and Phong Le, DPM
  • Court and Case Number: Sacramento County Superior Court / 34-2015-00174456
  • Date of Verdict or Judgment: Wednesday, October 11, 2017
  • Date Action was Filed: Tuesday, January 27, 2015
  • Type of Case: Medical Malpractice
  • Judge or Arbitrator(s): Hon. David DeAlba
  • Plaintiffs:
    Aaron Hiatt, 42.
  • Defendants:
    Roy Rubin, M.D., Inc.
    Phong Le, DPM
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: Defense verdict.
  • Award as to each Defendant:

    Defense Verdict (12-0) as to each defendant.

  • Trial or Arbitration Time: 9 days.
  • Jury Deliberation Time: 1 hour.
  • Jury Polls: 12-0.

The Attorneys

  • Attorney for the Plaintiff:

    Reiser Law, PC by Lilia Bulgucheva, Matthew Reiser and Isabella Martinez, Walnut Creek.

  • Attorney for the Defendant:

    Low McKinley Baleria & Salenko, LLP by Paul R. Baleria, Sacramento. (For Phong Le, DPM.)

    Scheuring Zimmerman & Doyle, LLP by Thomas J. Doyle, Sacramento. (For Roy Rubin, M.D., Inc..)

The Experts

  • Plaintiff’s Medical Expert(s):

    Vincent C. Marino, DPM, podiatry, Novato.

  • Defendant's Medical Expert(s):

    For Phong Le, DPM:

    Thomas J. Chang, DPM, podiatry, Santa Rosa.

    Timothy Albertson, M.D., pulmonary medicine, Sacramento,.

    For Roy Rubin, M.D., Inc.:

    Bruce Dobbs, DPM, podiatry, Daly City.

Facts and Background

  • Facts and Background:

    Plaintiff injured his left ankle at work on April 9, 2013. He was referred to Phong Le, DPM at Rubin Orthopedic Group for care and treatment beginning in July 2013. Various conservative treatment modalities were attempted, though plaintiff's symptoms did not improve. An MRI scan of his left ankle revealed a peroneus brevis tendon tear and peroneus longus tendinopathy.

    Due to plaintiff's persistent complaints of pain, inability to work, and objective findings on the MRI, Dr. Le recommended surgery to repair the tendons. He went over the risks of surgery, including the possibility that blood clots may develop, after which plaintiff provided his informed written consent to have the operation performed.

    Surgery went forward on January 27, 2014, at Mercy General Hospital Outpatient Surgery Center. Intraoperatively, Dr. Le noted there was a greater than 50% tear of the peroneus brevis tendon with significant synovitis. There was also synovitis noted within the peroneus longus tendon. Due to the severity of plaintiff's injury, Dr. Le exercised his judgment to perform a subtalar joint arthrodesis (fusion) procedure in addition to repair of the tendons. This had been discussed with plaintiff at the pre-operative appointment and was ultimately performed in order to maximize plaintiff's stability in the left foot and ankle.

    There were no intraoperative complications, and plaintiff was discharged home following the outpatient procedure. Postoperatively, plaintiff developed deep venous thrombosis (DVT) in his left lower extremity and a pulmonary embolism. He was admitted to Woodland Memorial Hospital on February 7, 2014, where the diagnosis was made and he received anticoagulation treatment. His condition improved and he was discharged home six days later. He continued to follow up with Dr. Le through May 2014, during which time he recovered from surgery.

  • Plaintiff's Contentions:

    Plaintiff contended that the subtalar joint arthrodesis aspect of the surgery performed by Dr. Le was unnecessary and below the standard of care. He also contended that the defendants were negligent in the post-operative care provided to him as they allegedly did not respond to his telephone calls and claimed reports of symptoms consistent with DVT. Plaintiff relied on the testimony of Dr. Marino to support his contentions.

  • Defendant's Contentions:

    The medical chart from Rubin Orthopedic Group only documents a single telephone call by plaintiff after surgery on February 3, 2014, at which time he requested a refill of his pain medication only. There were no complaints of DVT symptoms documented in that note.

    Defendants, including Dr. Le, contend they complied with the standard of care in all respects in this case. The expert testimony of Dr. Chang and Dr. Dobbs established that the subtalar joint arthrodesis aspect of surgery was indicated for plaintiff in order to stabilize the left foot and ankle for him. Further, the defense experts supported the post-operative care provided by Dr. Le and Dr. Rubin's corporation. 

    Defendants called Stuart Linne, M.D., the hospitalist who cared for plaintiff at Woodland Memorial Hospital to testify that plaintiff reported his symptoms of DVT did not begin until two days before admission to the hospital, or February 5, 2014. The pulmonary embolism symptoms did not begin until February 6, 2014. Based on that information, the lack of documented complaints of DVT/pulmonary embolism symptoms beforehand, and the pathophysiology of those conditions, defense expert Timothy Albertson, M.D. testified it was more probable than not plaintiff's DVT symptoms did not begin until after February 3, 2014, which rebutted plaintiff's contention that he reported such symptoms earlier.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Plaintiff asserted that he was harmed when he developed a pulmonary embolism and now requires ongoing anticoagulation in the form of Coumadin medication.

    Of note is that plaintiff's own expert, Dr. Marino, testified that he was not able to say, to a reasonable degree of medical probability, that plaintiff was harmed by undergoing the subtalar joint arthrodesis.

Special Damages

  • Special Damages Claimed - Past Lost Earnings: $56,000

Demands and Offers

  • Plaintiff Final Demand before Trial: $60,000
  • Plaintiff Demand during Trial: $1,056,000 (Plaintiff requested $500,000 in general damages from each defendant at trial)
  • Defendant §998 Offer: Waiver of costs.
  • Defendant Final Offer before Trial: Waiver of costs.