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Drevenak v. Abendschein

May 24, 2001


Before Ruiz, Reid and Glickman, Associate Judges.

The opinion of the court was delivered by: Reid, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Wendell P. Gardner, Trial Judge)

Argued February 10, 2000

After a bench trial in this medical malpractice matter, which involved a total knee joint replacement and allegations of improperly treated infection, the trial court rendered judgment in favor of appellee, Dr. Walter Abendschein. Appellant Lucinda Drevenak filed a timely appeal, alleging that: (1) the trial court used the wrong legal standard in assessing the expert testimony, and thus, based its judgment on "unsupported" testimony rather than "well-validated, documented and supported testimony"; (2) "the trial court did not utilize the correct standards of Frye *fn1 and Daubert *fn2 in evaluating the defendant's expert testimony"; and (3) many of the trial court's findings were clearly erroneous, specifically, those relating to the existence of a "sinus" and "sinus tract" in Ms. Drevenak's knee. Ms. Drevenak attributed the alleged errors to the trial judge making extensive findings months after trial, without the benefit of a trial transcript. Finding no error; holding that the Frye admissibility of evidence standard does not apply to an evaluation of the sufficiency of the evidence in this jurisdiction; and concluding that the evidence at trial is sufficient to support the trial court's judgment, we affirm.


The record on appeal shows that, in March 1993, Ms. Drevenak was a 5' 4", 72-year-old senior citizen, weighing around 210 pounds, who suffered from severe degenerative osteoarthritis in her right knee. Twenty years earlier a surgical procedure, known as "a high tibial osteotomy," had been performed on the knee to remove bone and straighten her leg, but the knee continued to degenerate through the years, resulting in pain and instability. Consequently, she was advised to undergo total knee replacement surgery, which Dr. Abendschein performed on March 10, 1993. *fn3 There were no complications during or after the surgery, and Ms. Drevenak began some physical therapy while she was still in the hospital. However, medical records, at the time of Ms. Drevenak's discharge from the hospital, reflected the presence of "a small area of draining sinus in the distal aspect of the knee." *fn4

Following her hospital discharge, Ms. Drevenak continued with physical therapy. On March 26, 1993, approximately two weeks after surgery, a therapist was assisting Ms. Drevenak in her exercises. After Ms. Drevenak had ascended some steps, she was in the process of descending them when she suddenly sat down and her knee split open. *fn5 Examination revealed an open patellar tendon rupture, which Dr. Abendschein diagnosed as "a traumatic rupture." That same day, Dr. Abendschein reattached the tendon, and did a "complete debridement of the knee with pulsatile lavage." He saw no sign of infection. *fn6 After surgery to reattach the tendon, Ms. Drevenak apparently was sent to the Carriage Hill Nursing Center in Silver Spring, Maryland. While she was there, a culture was taken on April 9, 1993 of the fluid draining from her right knee. The laboratory report showed "staphylococcus aureus, heavy growth" and "streptococcus, Beta-Hemolytic, Presumptive Group A . . . moderate growth." *fn7 When Ms. Drevenak saw Dr. Abendschein on April 9, 1993 for the removal of sutures, he noted that the "incision [from the knee replacement surgery] is angry but not cellulitic. . . ." *fn8 He concluded that there was no significant infection.

Dr. Abendschein examined Ms. Drevenak's knee again on April 12, 1993. He detected no sign of cellulitis or deep infection, but there was some drainage from the knee and the incision was "irritated." Because of the April 9th culture, Dr. Abendschein suspected a superficial infection and prescribed the antibiotic, Augmentin, and an antiseptic solution for daily cleaning of the wound. Another examination by Dr. Abendschein took place on April 23, 1993; he noted: "The patient has a serous draining sinus but no evidence of infection in her knee. She is continued on Augmentin for the present time and betadine dressings." Dr. Abendschein saw "no sign of excessive swelling, pain, [or] tenderness."

During the period of her recovery from the patellar tendon rupture, Ms. Drevenak fell on April 29, 1993, hurt her left hip, and "sustain[ed] an avulsion of the patella tendon" or a second rupture in her right knee. She was admitted to Sibley Memorial Hospital on the same day. Dr. Abendschein called in an infectious disease consultant who ordered cultures and prescribed intravenous antibiotics.

Ms. Drevenak's second rupture was repaired on May 4, 1993, apparently without incident. *fn9 Later, after further examination and diagnosis of her left hip condition, Ms. Drevenak also received a total left hip replacement on May 25, 1993. She remained in Sibley Memorial Hospital until June 8, 1993, when she was discharged to the National Rehabilitation Hospital. With respect to her knee, the following entry appears in the Sibley Memorial Hospital record:

Her knee did well. The incision had closed, and she was placed in a specially constructed double-upright long-leg brace.

She was kept on antibiotics through her course for both the previous knee cultures. . . . All of this was directed by the Infectious Disease specialist.

Upon her discharge from the National Rehabilitation Hospital, a record entry regarding examination at admission specified: "Incisions were clean without drainage." Ms. Drevenak continued rehabilitation at the National Rehabilitation Hospital until July 1, 1993, the date of her discharge. *fn10 At the time of her discharge, the National Rehabilitation records stated: "The patient regained good range of motion in her knee on the right and was able to learn to ambulate with partial weight bearing on the left." After evaluating Ms. Drevenak on July 1, 1993, Dr. Abendschein made the following notation:

The patient is evaluated for her right total knee replacement and her left total hip replacement. X-rays show good position of the left total hip replacement, she is having no problem whatsoever. She has no pain in the right knee, she has a 20 degree flexion lag but is able to perform SLR exercises, she has 90 degrees of flexion. X-rays show good position of the prosthesis and good position of the patella indicating the patellar tendon mechanism is still intact. She is continued in the use of the brace and will be re-evaluated in two months.

After her discharge from the National Rehabilitation Hospital, Ms. Drevenak returned to her home in West Virginia. On July 7, 1993, she was admitted to the City Hospital in Martinsburg, West Virginia, due to fever, redness and tenderness of the right leg. Hospital records stated: "The right leg incision showed a large area of erythema [redness] with warmth and tenderness. There was a small open area draining a small amount of pus." The impressionistic diagnosis was: "Cellulitis and/or infection of right knee prosthesis." Although a culture was taken, it "was lost by a combination of laboratory and nursing error." On July 8, 1993, Ms. Drevenak was transferred to Sibley Memorial Hospital.

Upon examining Ms. Drevenak following her return to Sibley Memorial Hospital, Dr. Abendschein concluded that her right knee was infected. She was given intravenous antibiotics, and Dr. Abendschein performed arthroscopic surgery and irrigation on July 8th and 12th. Moreover, on July 12th, cultures of fluid were taken from Ms. Drevenak's knee. When improvement did not occur, cultures of knee fluid again were taken, and Dr. Abendschein removed the knee prosthesis on July 19th, noting:

The patient has undergone two arthroscopies with vigorous debridement and still has a recurrent effusion of the knee. The last culture was negative but the fluid was clearly purulent and the components were removed and she was placed in a spacer with an immobilizer.

After her discharge in early September 1993, Ms. Drevenak eventually returned to West Virginia. Her health continued to decline, and in late 1993 and early 1994, she had a range of medical problems relating to the knee and hip; and other medical conditions, including non-insulin dependent diabetes mellitus. Medical records also show that Ms. Drevenak's problems with right knee infection persisted into 1996.

On March 8, 1996, Ms. Drevenak filed suit against Dr. Abendschein, alleging negligence, medical malpractice, with respect to her total right knee replacement. In essence, Ms. Drevenak maintained that Dr. Abendschein failed to recognize and properly treat the symptoms of deep infection that caused her patellar tendon to rupture twice, and ultimately forced the removal of her right knee prosthesis. Two months after a bench trial, extending approximately one week in March 1998, the trial court summarized its findings and conclusions over a two-day period, without the benefit of a trial transcript. Subsequently, judgment was rendered in favor of Dr. Abendschein. Ms. Drevenak made no post-trial motion, but filed a timely notice of appeal.


Ms. Drevenak's arguments on appeal are directed toward the trial court's assessment of the expert evidence presented, and its findings pertaining to sinus and sinus tract drainage. In particular, she maintains, in essence, that her experts were superior to those of the defense because, consistent with Frye and Daubert, supra, her experts supported their opinions with scientific publications. Before addressing Ms. Drevenak's specific contentions, we set forth a summary of the pertinent expert testimony, and the trial court's findings and conclusions. Then we reiterate the general applicable standard of review.

In this complex and hard-fought case, five experts testified during trial. Two of the experts rendered opinions relating to infectious diseases and Ms. Drevenak's right knee infection: Dr. Chester Smialowicz for Ms. Drevenak; and Dr. Andrew Mayrer for Dr. Abendschein. Three experts gave national standard of care testimony relating to orthopedic surgery: Dr. Lawrence Shall for Ms. Drevenak; and Doctors Randall Lewis and Richard Grant for Dr. Abendschein. Dr. Abendschein also testified on his own behalf.

Dr. Smialowicz finished Mount St. Mary's College in Emmitsburg, Maryland in 1963. He completed his medical studies at the University of St. Louis in 1967. During his one-year internship at a hospital in Camden, in New Jersey, he concentrated on "medicine" and "general surgery." Following his medical experience in Vietnam and Alabama as part of the armed forces, he began his three-year residency in internal medicine at the Cooper Medical Center in Camden, New Jersey, rising to the positions of Chief Medical Resident, and then Chief Resident. In 1973, he commenced a two-year fellowship in infectious diseases at the Medical College of Pennsylvania in Philadelphia. He was board certified in neither infectious diseases nor internal medicine. *fn11 However, he has specialized in infectious disease in private practice since 1975. He also serves as a Clinical Instructor in Medicine at the Robert Wood Johnson Medical School in Piscataway, New Jersey; as a consultant in infectious diseases at various hospitals, medical centers, and clinics in New Jersey; and is head of the infectious disease department at the Deborah Heart and Lung Center in New Jersey. He consults on at least two cases of prosthetic infection per year. In terms of additional training in infectious diseases, Dr. Smialowicz attends either the Harvard or the University of Michigan course on infectious diseases, and national meetings on infectious diseases. He stated that he became familiar with "the national standard of care required of a physician in diagnosing and treating an artificial knee joint which is possibly infected" by attending national meetings and grand rounds and conferences, and by discussing the matter with his "orthopedic colleagues as [he] help[s] them care for [their] patients." The trial court accepted Dr. Smialowicz as an expert in "the diagnosis and treatment of infected knee prosthesis."

Dr. Andrew Mayrer, the infectious disease expert for Dr. Abendschein, received an A.B. degree in biology from Columbia College in 1970, and his medical degree from Yale Medical School in 1974. He completed a three-year residency at the University of Pittsburgh, followed by a three-year infectious disease fellowship at Yale. From 1980 to 1984, he was on the Yale medical faculty, division of infectious disease. In 1984, he became Attending Physician and Director, Division of Infectious Diseases at Sinai Hospital, in Baltimore, Maryland, and an Assistant Professor of Medicine at the Johns Hopkins School of Medicine. He became board certified in internal medicine in 1977, and in infectious diseases in 1996. He has also served as an Adjunct Assistant Professor of Pathology at the University of Maryland, and Medical Director of the Northwest Convalescent Center nursing home. He has lectured on superficial and deep wound infections, and for the past twenty years, has been a consultant on one case per month involving infection of orthopedic prosthetic devices, mostly (75 to 80 percent) involving the hip but some concerning the knee. Referring to the "literature," he stated that he was familiar with the standard of care "in terms of the diagnosis, treatment and management of infections of a prosthesis following surgery," as well as "issues of causation and damages." His resume reveals that he has done extensive writing and lecturing on a variety of medical subjects, including infections.

At trial, Dr. Smialowicz stated that Dr. Abendschein failed to "fulfill[] the national [standard of] care required in diagnosing and treating . . . a possible postoperative infection after he performed the total knee replacement on . . . [Ms.] Drevenak on March 10, 1993." Specifically, he failed to recognize "clues" that deep infection was present. Had Dr. Abendschein diagnosed the deep infection

[d]uring the critical first four weeks in the postoperative period . . . [and had a debridement been performed] followed by six weeks of antibiotic therapy, the literature and the experience has been that there is a significant salvage rate of 80 percent or more in saving these prostheses, and that once one ignores these signs and clues, and once one gets past one month, and the farther you get past it, you are now in the chronic stage of a prosthetic knee infection, and now if you try to perform the same procedure with debridement followed only by antibiotics in the attempt to salvage that prosthesis, your success rate drops down to something like 8 percent.

In connection with deep infection, Dr. Smialowicz referenced the work of Dr. Conen in the late 1950s on staphylococcus aureus and its dangers. He discussed group A beta-hemolytic streptococcus, which is "extremely virulent in infecting tissue and in destroying tissue." Staphylococcus aureus and group A beta-hemolytic streptococcus "work synerg[i]stically." That is, "[e]ach one has [its] own particular virulent ability, but when they are together, they are even more powerful in causing infection in tissue." He pointed out that: "Elderly patients have a higher rate of postoperative infection with prostheses," and that prior surgery performed in the same area of the body "is an increased risk factor," as is obesity and "delayed wound healing." As early clues showing deep infection of the knee prosthesis, Dr. Smialowicz cited: fever of 100 degrees or higher on seven days in a twelve day period following surgery, despite the fact that Ms. Drevenak was given Tylenol and Percocet; drainage from the wound; erythema, or redness; and pain, even though Ms. Drevenak's medical charts did not mention pain. *fn12

Because Dr. Abendschein failed "to fulfill the national standard of care between March the 10th and the 22nd with respect to his diagnosis and treatment of [Ms.] Drevenak's infection . . .," in Dr. Smialowicz' view, " a sequence of other injuries [resulted,] aside from having to have the prosthesis eventually removed." Thus, Dr. Smialowicz attributed the two ruptures of the patellar tendon, the fall and hip fracture, the "deep vein thrombophlebitis, clotting of the veins in [Ms. Drevenak's] legs"; and bone destruction in the knee to the failure of Dr. Abendschein to diagnose the deep infection in Ms. Drevenak's knee in March 1993, or within four weeks of her total knee replacement surgery; and to perform "debridement surgery . . . followed by six weeks of [intravenous] antibiotics for the staphylococcus. . . ." To support his opinion, Dr. Smialowicz referenced the Textbook of Infectious Diseases, edited by Dr. Gorbach, and specifically, Dr. Karchner's chapter on infected prostheses; Campbell's Textbook of Operative Orthopedic Procedures; Dr. Lotke's Postoperative Infections; and The Principles and Practice of Infectious Diseases by Doctors Mandel, Douglas and Bennett.

Turning to the subject of signs of infection during Ms. Drevenak's hospitalization between March 26th and April 3rd, Dr. Smialowicz mentioned "drainage from the knee wound," fever over 101, and a "slightly elevated" white cell blood count of 10,800. He opined that the antibiotics that Ms. Drevenak received in this time period had the effect of "suppress[ing] the infection, but certainly not cur[ing] a deep-seated infection." Although Dr. Smialowicz acknowledged that Dr. Abendschein ordered a culture during the March 26th repair of the patellar tendon, he saw no evidence of the results, nor any follow-up, in Ms. Drevenak's medical records.

Next, Dr. Smialowicz focused on the period April 8th through April 29th. He singled out April 8, 1993 as significant because of a medical record entry showing redness, warmth, and drainage. He pointed out that a culture taken of the fluid from Ms. Drevenak's leg on April 9th revealed both staphylococcus aureus and group A beta streptococcus, both of which are virulent organisms that can act synergistically to cause serious infection and consequent damage to a prosthesis. To substantiate his opinion, Dr. Smialowicz cited a 1978 study by Dr. McAlac stating that eighty percent of the time, "when staphylococcus aureus is cultured from a sinus tract . . .," it is indicative of deep infection. He determined that Dr. Abendschein's decision to prescribe Augmentin, an oral antibiotic, to counteract the organisms in the culture, was inconsistent with the national standard of care "because [Augmentin] will not attain adequate levels in the deep bone prosthesis in order to eradicate the infection." Rather than prescribe Augmentin, Dr. Abendschein should have ordered re-hospitalization and performed an aspiration of the joint "to see if those same organisms were in the joint fluid so that proper intravenous antibiotics [could have been] started." Had Dr. Abendschein undertaken the proper course of action during the April 8th to 29th period of time, Dr. Smialowicz estimated that there was "probably at least a 65 to 70 percent chance of salvage . . . [of the prosthesis]." In addition, the destruction of the bone could have been avoided since the cure rate for acute osteomyelitis "is very high." He attributed the negative culture results on April 29th to the Augmentin and the intravenous antibiotics which "mess[ed] up the evidence" of deep knee infection.

On cross-examination, counsel for Dr. Abendschein used Dr. Smialowicz' earlier deposition to try to show his lack of familiarity then with some of the medical works on which he relied at trial, or to point out that counsel for Ms. Drevenak had sent him the material. In fact, during his deposition, Dr. Smialowicz apparently referenced only one study, which appeared in the American Journal of Knee Surgery in Spring 1996, "Diagnosis and Management of the Infected Total Knee Arthroplasty" by Simmons and Stern.

Defense infectious disease expert, Dr. Mayrer, had a different evaluation of Dr. Abendschein's course of action. He opined that: "Dr. Abendschein comported with the [] standard of care expected of an orthopedic surgeon following [Ms. Drevenak's] knee procedure, and subsequent events relating to two or three episodes of dehiscence, opening up of the surgical wound that Dr. Abendschein had initially closed." He found Ms. Drevenak's "mild post-operative temperature" to be "fairly typical," based on his experience and involvement with "the dozen of scores and hundreds of orthopedic patients." The "intermittent drainage" from Ms. Drevenak's wound was not unusual and "did not constitute . . . any evidence of a serious side effect or infection" at the time of Ms. Drevenak's discharge from the hospital.

During the period between March 10 and 26, Dr. Mayrer concluded that "[a] number of factors militate quite heavily against deep knee infection . . . ." For example, Ms. Drevenak "did not have significant amounts of pain"; "she did not exhibit the expected diminished range of motion while she was doing her rehabilitation therapy"; "she was taking virtually no pain medication at home. . . ."; and a March 26th examination of Ms. Drevenak revealed no pus, and no "significant loss of bone." *fn13

In discussing infection, Dr. Mayrer distinguished between "acute and fulminant" infection indicating the presence of "virulent aggressive nasty organisms that behave in a very prompt manner with respect to tissue damage and the consequences thereof," and "chronic or indolent" infection where "less virulent, less invasive organisms [are present] that don't come on like gang busters, but rather that develop slowly over time with the manifestations of inflammation or infection." Offering further explanation, Dr. Mayrer stated:

Most infectious disease people regard the acute process due to the more virulent organism such as staph aureus as the sort that come on fairly quickly, that have a high degree of pain, often have fever, elevated temperatures, a ...

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