Kim Davenport

The Incident

The Patient and the Procedure

The patient was a 61-year-old female presenting with bilateral lower extremity numbness. She was directly admitted to a local hospital at the request of her primary care provider. The patient had a long and complicated medical history, including scoliosis and T10-T11 and L5-S1 disc bulges.

Upon arrival, an evaluation revealed the patient had progressively declining bilateral lower extremity weakness and numbness. The patient described these symptoms as becoming increasingly severe over the preceding month. A nurse practitioner documented subjective numbness in the patient from her waistline down to her feet bilaterally. Later that evening, our insured, a neurosurgeon, attended the patient. He provided an addendum to the consultation note, indicating the patient required decompression and microdiscectomies. The following day, our insured performed T10-T11 bilateral laminectomies and bilateral microdiscectomies using a lateral approach — this approach did not require cord movement.

Post-Procedure

While in the post-anesthesia care unit (PACU), the patient had no strength in her bilateral lower extremities, especially her left leg. She reported a sensation in her right foot but described numbness in her left foot up to her left upper thigh. She noted the numbness and tingling below her mid-abdomen remained. 

Our insured evaluated the patient and found her pain was well controlled, her sensation had improved immediately post-op, and her motor skill was 1 out of 5, bilaterally. He discussed with the patient the degree of cord atrophy and compression he’d observed during the procedure. He advised her she’d likely need inpatient rehabilitation.

The patient’s numbness continued, and two days later, she developed paraplegia and sensory loss from T11 down. An MRI found post-laminectomy changes at the T11 and T12 levels. There was a focal posterior central disc protrusion of the T10-T11 intervertebral disc, causing severe spinal canal stenosis and cord compression. Cord edema was also present from T9-T11.

Our insured performed T10-T11 bilateral microdiscectomies and noted there was no sign of hematoma or abnormal fluid collection. The thecal sac was seen posteriorly to be well decompressed in the disk space. In PACU, the patient reported she couldn’t move her legs but could feel touch and more sensation than she could pre-operatively. She was discharged to a rehab and skilled nursing facility and was later discharged home.

Medical Outcome

Six months after the initial procedure, an MRI showed progressed focal myelomalacia of the spinal cord at the T10-T11 disc space. The patient was eventually diagnosed with compressive thoracic myelopathy from the T10-T11 disc herniation. She is now a T10 paraplegic and has a neurogenic bowel and bladder.

The Lawsuit

Allegations Against Our Insured

The plaintiff alleged our insured fell below the standard of care by attempting to treat a large midline thoracic disc herniation with severe spinal cord compression by doing posterior laminectomies.

Damages Claimed by the Plaintiff

$8,514,000.00

Amount KAMMCO Paid to Defend Our Insured

$226,665.58

Resolution: Defense Verdict

The case went to trial. After nine days of testimony, the jury deliberated for just under two hours and returned an 11 to 1 defense verdict.

Litigation Tip: The Value of Experts

The Plaintiff’s Experts

The defense counsel repeatedly demonstrated that the plaintiff’s experts were “cherry-picking” evidence in the plaintiff’s favor. For instance, the plaintiff’s neurosurgical expert testified that “the imaging tells the tale.” Yet, he chose not to discuss the pre-operative MRI that showed enhancement in the cord, which indicated a severe preexisting injury.

The plaintiff’s neuroradiology expert testified in his deposition that the pre-operative MRI showed a severe injury, indicating a poor prognosis. But at trial, he backed away from these statements. On cross-examination, the defense counsel asked him why his PowerPoint presentation to the jury didn’t include the pre-operative MRI images from his report. He testified that the plaintiff’s counsel asked him to remove those images. This testimony didn’t sit well with the jury. 

The Defense’s Experts

The defense also had a neurosurgery and a neuroradiology expert. Both presented well on the stand, but the neuroradiology expert proved to be an outstanding witness. He walked the jury through the relevant MRI studies and demonstrated 1) the plaintiff had a very serious pre-operative injury, 2) radiology did not demonstrate an intraoperative injury, and 3) the plaintiff’s post-operative spinal cord problem was in the same spot it was pre-operatively. He talked the jury through the MRI slides, describing each image and explaining his findings. His final image to the jury was a side-by-side comparison of the pre-operative MRI and post-operative MRI revealing the injury in the exact same location.

The Jury’s Perspective

Following the verdict, the defense counsel spoke with 11 of the jurors. They felt the plaintiff’s counsel and their experts were hiding information from them. They found it amusing that the plaintiff’s experts became visibly rattled when confronted by the “missing facts” of the case under cross-examination.

Conversely, the jury liked the defense’s experts and how they stood up to cross-examination on the stand. They felt the neuroradiology expert “nailed it,” with several citing his testimony as the turning point in their decision for a defense verdict. They thought he made the facts easy to understand and that he wasn’t attempting to impress anyone.