Penewell v. M.D., et al.

State of Wisconsin/ Circuit Court/Dane County

In this missed diagnosis and failure to provide informed consent medical malpractice jury trial, defense counsel Mark Budzinski and Adam Fitzpatrick secured a no negligence verdict in favor of an urgent care physician. Plaintiff claimed that she was in the early stages of acute compartment syndrome on the day of her visit to the urgent care, that the physician missed the diagnosis of compartment syndrome, and that the physician failed to inform her about the risks and negative side effects of an untreated compartment syndrome upon discharge. Plaintiff further claimed that the missed diagnosis led to her compartment syndrome going untreated for two days before she ultimately presented to the emergency room for eventual diagnosis and treatment.

The defense contended, however, that plaintiff was not experiencing an acute compartment syndrome when she saw the urgent care physician and that it developed in the days after her urgent care visit. Further, given the urgent care physician had not diagnosed compartment syndrome, there was no duty to inform plaintiff about a condition she did not have. During trial, attorneys Budzinski and Fitzpatrick obtained a Directed Verdict on the informed consent claim following cross examination of the plaintiff's experts and briefing the issue for the trial judge.

This case spanned six years between the alleged negligence and trial, involved extensive discovery, and required numerous pre-trial motions and hearings. Plaintiff alleged damages surpassing $2.5 million for pain and suffering, medical expenses, and loss of earnings. After a short deliberation, the jury found no negligence on the part of the urgent care physician.