Patient with lower-leg pain says hospital docs failed to diagnose hip fracture. Defense verdict. San Diego County.


Doctors at Scripps admit older woman after fall, but don't order radiology studies that would show a hip fracture. Doctors say patient complained only of pain at the knee and below.

The Case

  • Case Name: Michele C. Ferguson v. Gordon Beh, II, M.D.; David I. Bruner, M.D.; Jeffery B. Frisen, M.D.; and Brian Butler, M.D.
  • Court and Case Number: San Diego County Superior Court / 37-2019-00048391
  • Date of Verdict or Judgment: Tuesday, June 13, 2023
  • Date Action was Filed: Friday, September 13, 2019
  • Type of Case: Medical Malpractice
  • Judge or Arbitrator(s): Hon. Matthew Braner
  • Plaintiffs:
    Michele C. Ferguson, 69
  • Defendants:
    David Bruner, M.D.; Jeffrey Friesen, M.D.; Gordon Beh, M.D.; Brian Butler, M.D.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: Defense verdict
  • Trial or Arbitration Time: 8 days
  • Jury Deliberation Time: 2 1/2 hours

The Attorneys

  • Attorney for the Plaintiff:

    Law Offices of Douglas Jaffe by Douglas Jaffe, San Diego.

    Law Offices of John W. Zryd by John Zryd, San Diego.

  • Attorney for the Defendant:

    Neil Dymott Frank McCabe & Hudson by Clark Hudson, San Diego. (For David Bruner, M.D.)

    Robert A. Cosgrove & Associates by Robert A. Cosgrove and W. Jennifer Watson, Encinitas. (For Jeffrey Friesen, M.D.; Gordon Beh, M.D.; Brian Butler, M.D.)

The Experts

  • Plaintiff’s Medical Expert(s):

    Miles Shaw, M.D., emergency medicine.

    Ryan Klein, M.D., hospitalist medicine.

    Steven Narvy, M.D., orthopedic surgery.

  • Defendant's Medical Expert(s):

    John Anshus, M.D., emergency medicine.

    Michael Eilbert, M.D., hospitalist medicine.

    Michael Kimball, M.D., orthopedic surgery.

Facts and Background

  • Facts and Background:

    Plaintiff, a 64-year-old resident of Kansas City, MO, suffered an unwitnessed fall while visiting her daughter in San Diego on September 20, 2018. Plaintiff presented to Scripps Mercy Hospital in San Diego on September 20, 2018, complaining of pain in her lower right leg after having suffered a fall. Due to preexisting expressive aphasia from a stroke she suffered in 2014, she had difficulty with communication, and her daughter was present to assist her in communicating history and complaints in conjunction with information communicated by plaintiff herself through the use of "yes" and "no" questions.

    At Scripps Mercy, plaintiff was treated and examined by defendant Dr. Bruner, emergency department physician, who ordered X-rays and a CT scan of the lower right leg due to complaints of knee and foot/ankle pain. Plaintiff was also physically examined by Dr. Friesen, hospitalist, who also documented knee and foot/ankle pain, and admitted her to the hospital while imaging studies ordered by Dr. Bruner were still pending final interpretation. Plaintiff was seen in follow-up by Dr. Butler, who performed examinations, ordered an MRI of the lower leg after initial imaging studies of the lower leg were negative, and ordered continued physical therapy. Dr. Butler's notes documented pain only below the knee in the right leg.

    Plaintiff was finally seen by Dr. Beh, who performed examinations, noting the same pain as described by Dr. Butler. Dr. Beh ordered continued physical therapy, and discharged the patient on September 26, 2018 after improvement with physical therapy and improvement in pain. He recommended skilled nursing follow-up, but due to issues with plaintiff's out-of-state insurance plaintiff and her family elected to delay follow-up until after her return home to Kansas City, MO.

    After discharge, plaintiff continued to have some pain and difficulty with ambulation. She returned home to Kansas City, MO by plane on October 1, 2018, and presented to the emergency department at Research Medical Center, again complaining of right leg pain. There, a femur X-ray was performed, which revealed a hip fracture. Plaintiff underwent hemiarthroplasty surgery for a hip fracture on October 2, 2018.

  • Plaintiff's Contentions:

    Plaintiff claimed defendants negligently failed to diagnose and treat plaintiff’s hip injury, leading to delay in diagnosis of a subcapital femoral neck fracture and resulting in pain and injury. At trial, plaintiff and her daughter testified that plaintiff repeatedly gestured by waving her left hand over her right hip when communicating complaints to healthcare providers. Plaintiff's emergency medicine expert, Dr. Shaw, testified that hip fracture should have been at the top of the differential due to plaintiff's age, and the fall. Accordingly, the standard of care required a detailed hip examination and/or a hip X-ray.

    Plaintiff's hospitalist expert, Dr. Klein, testified similarly that hip fracture should have been at the top of the differential, and that a detailed hip examination or hip X-ray was required by the standard of care. He testified the patient was a poor historian and did not give a reliable account of symptoms, thus placing the onus on defendants to pursue additional considerations. Dr. Klein also testified that when Plaintiff had not regained function, an orthopedic consult was required. He further testified that continued physical therapy caused the pre-existing fracture to become more displaced.

    Plaintiff's orthopedic surgery expert, Dr. Narvy, testified the fracture should have been identified and that an orthopedic surgeon should have been called. Dr. Narvy testified that if the fracture was not displaced at the time of treatment by the defendants, and if it had been diagnosed earlier, plaintiff could have undergone a more limited surgery as opposed to a hemiarthroplasty. All of plaintiff's experts testified regarding "referred pain," which can manifest as knee pain.

  • Defendant's Contentions:

    Defendants argued that plaintiff at no time complained of hip pain, groin pain, buttock pain, or any other pain or complaint indicative of a hip fracture. Rather, plaintiff's complaints were localized to the knee or below the knee at all times.

    Dr. Anshus testified that Dr. Bruner complied with the standard of care at all times, by conducting an appropriate examination and ordering relevant studies on the areas complained of. He further testified it is not uncommon to admit a patient to the hospital without a specific diagnosis. Dr. Eilbert testified that Dr. Friesen, Dr. Butler, and Dr. Beh conducted appropriate examinations, including strength testing by having the patient lift the leg and/or extend and withdraw the knee, which tests range of motion of the hip. It would be expected that in the presence of a hip fracture, this would elicit pain, if the patient had any. The defense emphasized there was no medical record entry by any defendant, nurse, physical therapist, or occupational therapist, indicating plaintiff at any time that gestured to, or communicated hip, buttock, or groin pain, whether independently or through her daughter, who was present on a daily basis throughout the hospital admission.

    All hospitalist defendants and their expert testified that, in their training and experience, referred pain is pain at the site of fracture in addition to pain experienced at another location. Never had they encountered another hip fracture patient who complained of no pain in the hip, and only pain elsewhere. Defendants' joint orthopedic surgery expert testified that there was no need for a referral to an orthopedic surgeon under the circumstances, as no fracture was identified due to the absence of a complaint of hip pain. He further testified the optimal and appropriate surgery for plaintiff irrespective of any delay in diagnosis was a hemiarthroplasty, which is what plaintiff underwent less than a week after discharge, when she returned to Kansas City.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Pain and suffering, delay in diagnosis, leading to exacerbation of fracture and related damages.

  • $300,000 in pain and suffering

Special Damages

  • Special Damages Claimed - Past Medical: Approximately $47,000
  • Special Damages Claimed - Future Medical: N/A
  • Special Damages Claimed - Past Lost Earnings: N/A
  • Special Damages Claimed - Future Lost Earnings: N/A