$3.5M settlement for negligent performance in back surgery

2005 Medical Malpractice Settlement Report

Medical Negligence: Surgical Negligence Medical Malpractice Back Surgery

In November of 1998, the plaintiff was a healthy 35 year-old man with no significant past medical history. At that point in time, the plaintiff began treating with a physician for complaints of neck pain and right upper extremity numbness. The plaintiff reported that he had strained his neck while swimming the year prior. An MRI confirmed a small right-sided disc protrusion at the C 6-7 level with probable muscle spasm.

Over the next several months, the plaintiff was treated conservatively with various medications including steroids and anti-inflammatories but he had no relief with these treatment measures. In April 1999, the plaintiff decided to change to another physician and he began treating with the defendant orthopedic surgeon at the Beth Israel Deaconess Medical Center (BIDMC). After a short course of steroid injections, which were ineffective, the defendant recommended that the plaintiff undergo disc surgery.

On 8/27/99, the defendant performed a C6-7 cervical diskectomy. During the procedure, Dr. Lipson noted in his records that he noticed a small dural leak during the surgery. (The dura is one of the protective layers of connective tissue that covers the spinal cord. ) At the completion of the procedure, the plaintiff was awakened but was unable to move his lower extremities. A CT scan and MRI were obtained in the first few hours post-operatively. The MRI revealed findings consistent with mild cervical spinal cord swelling and recent hemorrhage. The defendant noted that these clinical findings represented cord trauma and a bleed.

The plaintiff was discharged to New England Rehabilitation Hospital where he was noted to have very limited movement of his upper extremities, no pain or temperature sense in his feet, and no movement of his lower extremities. He also had loss of bowel and bladder function requiring bladder catheterization every 4 hours and an aggressive bowel regime. Today, the plaintiff is in a wheelchair, has no movement of his lower extremities and has no bowel or bladder control.

It was the plaintiff’s position that the spinal cord trauma and subsequent bleed could only have occurred as a result of negligence by the defendant during the course of the surgery. The plaintiff expected expert testimony to show that the dural leak was not present before the surgery and had to have been caused by the defendant when he was removing disc material. The defendant acknowledged that it would be negligent of him to injure the spinal cord during this surgery. However, the defendant testified that he always takes care to avoid injury to the spinal cord and he indicated that he was not near the spinal cord during this surgery. It was the defendant’s position that a sudden, unpredictable change in blood pressure during the surgery most likely led to the injury of the spinal cord.

Prior to trial, the parties entered into a mediation process which ended in the settlement of this matter for Three Million Five Hundred Thousand Dollars ($3,500,000).

ATTORNEYS FOR PLAINTIFF: Andrew C. Meyer, Jr., and Robert M. Higgins, Lubin & Meyer P.C.

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