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Philadelphia County, Pennsylvania

The plaintiff in this medical malpractice action contended that the defendant neurosurgeon negligently performed a lumbar laminectomy and fusion and that the surgery was not necessary.

The plaintiff contended that the defendant also negligently performed a second surgery in an attempt to repair a dural (spinal) leak and did not obtain informed consent for the initial implantation of the rods. The defendant neurosurgeon’s professional association was named as a defendant on a vicarious liability theory. The hospital where the surgery was performed was also named as a defendant in the case, based on the allegation that it failed to properly credential the defendant neurosurgeon to perform a spinal fusion procedure with instrumentation. The defendants maintained that the initial lumbar laminectomy and fusion were required and properly performed with the plaintiff’s full informed consent. The defense argued that the dural leak occurred in the absence of negligence, necessitating the second surgery which was also performed within the required standard of care.

The male plaintiff, age 35 at the time, injured his back while lifting a patient on February 3, ________, in connection with his employment as a licensed practical nurse. Following the lifting incident, the plaintiff experienced pain and spasms in his low back and some pain in his left leg extending into his left foot.

He was unable to return to work.

In March of ________, the plaintiff was seen by the defendant neurosurgeon who was then the chief of neurosurgery at the defendant hospital. The defendant diagnosed the plaintiff as suffering from unstable spondylolisthesis at L5-S1 with lumbosacral radiculopathy. The defendant recommended a lumbar laminectomy and fusion procedure at L5-S1. The plaintiff elected not to have the procedure at that time and instead sought opinions from other neurosurgeons. At their direction, he underwent physical therapy and a trial of anti-inflammatory medication. Evidence showed that no other physician diagnosed the plaintiff as having unstable spondylolisthesis and no other physician recommended surgery.

The plaintiff’s medical experts testified that the plaintiff’s MRI films and CAT scans failed to demonstrate any nerve root compression or other condition warranting surgery.

Flexion/extension x-rays revealed a spondylolisthesis. However, the plaintiff’s physicians opined that upon flexion and extension, there was no movement of the L-5 or S-1 vertebrae, therefore, the films failed to demonstrate any spinal instability. p 7 3 In October of ________, the plaintiff returned to the defendant insofar as he was still unable to return to work and the surgery was agreed upon. On November 2, ________, the defendant performed a twelve hour decompression and fusion surgery on the plaintiff during which the plaintiff’s experts opined that the defendant removed extensive amounts of bone from L4 through S1. In an effort to stabilize the spine, the defendant utilized two steel rods known as Luque Rods and wired them to the posterior elements of the plaintiff’s spine.

The plaintiff testified that he awoke from surgery with excruciating headaches, back pain and bilateral leg pain unlike anything he had experienced before. Within approximately seven days it was discovered that the wires which the defendant had placed had broken and the edges of these wires had punctured the plaintiff’s dural sac, causing a spinal fluid leak.

On November 11, ________, the defendant performed an additional four hour surgery on the plaintiff at which time he attempted to secure the rods again with new wires and also used an acrylic substance known as methyl methacrylate. The plaintiff contended that the methyl methacrylate was placed over the wires and spilled into the posterior gutters of the plaintiff’s spine. The plaintiff also contended that post-operative x-rays revealed that the Luque rods were not properly anchored as recommended by the manufacturer, but that the ends of the rods where simply sticking into the soft tissues of the plaintiff’s back.

The plaintiff was discharged from the defendant hospital on November 14, ________. He returned on November 16, ________, and remained as an in-patient through December 9, ________. During these weeks the plaintiff contended that spinal fluid was continuously drained from his back wound, as his spinal fluid leak continued. He was again discharged but returned to the hospital on four separate occasions during the final weeks of ________, complaining of excruciating back pain, bilateral leg pain and intractable headaches. On each occasion, the defendant met the plaintiff at the hospital, drained fluid from his back and sent him home.

At his wife’s insistent, the plaintiff presented to a different hospital through the emergency room on January 4, ________. He was immediately admitted and diagnosed as suffering form a persistent spinal fluid leak. After four days as an inpatient and numerous consultations, the plaintiff was transferred via ambulance to the Spinal Cord Injury Center at Thomas Jefferson University Hospital, where he underwent a lumbar catheterization to relieve the spinal fluid leak. Within five days after that procedure the plaintiff’s headaches subsided. He was discharged on January 19, ________, to rest for major spinal reconstructive surgery to be performed six weeks later.

On March 24, ________, the plaintiff underwent a 23-hour anterior/posterior spinal fusion surgery in which levels of L3 through S1 were fused by removing the discs, placing cadaver bone in between the vertebrae and securing the construct with eight titanium pedicle screws together with two titanium rods. The plaintiff’s experts testified that this surgery was undertaken to remove all the hardware improperly placed by the defendant and to stabilize the plaintiff’s spine, thereby repairing the instability that the defendant allegedly created by removing so p 7 3 much bone in the original procedure. Following his discharge from the hospital, the plaintiff was sent home in a body cast and remained in bed in a body cast for 85 days. After the cast was removed, he underwent extensive physical therapy and water therapy. He claimed that he has not been able to return to work and remains in constant chronic pain in his back and down both legs.

The plaintiff claimed medical expenses in excess of $________ and his physicians testified that he is totally, permanently disabled from employment. Testimony from economic experts and life care planners indicated that the plaintiff incurred total economic damages including past lost earnings, loss of future earning capacity and future medical costs in excess of $5 million.

The defendants maintained that the initial surgery was necessary and disputed the interpretation of the films relied upon by the plaintiff to argue the contrary. The defendants’ experts testified that the rod instability and dural leak occurred in the absence of negligence and were timely and properly addressed by the defendant neurosurgeon. The defendant’s experts contended that the subsequent surgery, during which the orthopedic hardware was removed, was unwarranted. The defendant hospital argued that it met federal standards and hospital bylaws in renewing the credentials of the defendant neurosurgeon. The defendant neurosurgeon testified that he was trained in use of Luque rods at a neurosurgery fellowship held at the University of Pittsburgh.

The jury found the defendant neurosurgeon 72.5% negligent and the defendant hospital 27.5% negligent. The jury also found that the defendant neurosurgeon had not obtained the plaintiff’s informed consent prior to the surgery. The plaintiff was awarded $22.4 million comprised of $17.6 million to the plaintiff and $4.8 million to his wife for her loss of consortium claim. After the close of evidence and before the jury returned its verdict, a confidential high/low settlement which limited the plaintiff’s recovery to a fraction of the verdict, was reached between the parties. The settlement precludes appeal or delay damages.

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