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Suit: Failure to notify surgeon of signal loss resulted in paralysis

Amount:

$26,802,018.62

Type:

Verdict-Plaintiff

State:

California

Venue:

Kern County

Court:

Superior Court of Kern County, Kern

Injury Type(s):

paralysis/quadriplegia-paraplegia

Case Type:

Medical Malpractice - Surgical Error, Negligent Treatment, Failure to Communicate

Case Name:

Charlene McKnight v. Catholic Healthcare West; Catalino Dureza M.D., Inc.; Catalino Dureza, M.D.; Shahram Ehteshami, M.D.; Neuro Application Services Corp.; Richard Spain; Michael Johnson; and Frank R. Putman, No. S-1500-CV-269628-SPC

Date:

December 2, 2013

Parties

Plaintiff(s):

Charlene McKnight (Female, 48 Years)

Plaintiff Attorney(s):

Conal Doyle; Doyle Law; Beverly Hills, CA, for Charlene McKnight ■ Philip Michels; Law Offices of Michels & Lew; Los Angeles, CA, for Charlene McKnight ■ Alejandro D. Blanco; The Blanco Law Firm; Glendale, CA, for Charlene McKnight

Plaintiff Expert(s):

Brian King; M.D.; Neuroradiology; Los Angeles, CA called by Philip Michels, Alejandro D. Blanco, Conal Doyle ■ Lorne Label; M.D.; Neurology; Thousand Oaks, CA called by Philip Michels, Alejandro D. Blanco, Conal Doyle ■ Peter Formuzis; Ph.D.; Economics; Santa Ana, CA called by Philip Michels, Alejandro D. Blanco, Conal Doyle ■ Sharon Kawai; M.D.; Life Care Planning; Fullerton, CA called by Philip Michels, Alejandro D. Blanco, Conal Doyle ■ Charles Yingling; Ph.D.; Physiology; Oakland, CA called by Philip Michels, Alejandro D. Blanco, Conal Doyle ■ Jeffrey Dembner; M.D.; Neurosurgery; Fairfield, CA called by Philip Michels, Alejandro D. Blanco, Conal Doyle

Defendant(s):

Richard Spain, 

Frank R. Putman, 

Michael Johnson, 

Catalino Dureza, M.D., 

Shahram Ehteshami, M.D., 

Catholic Healthcare West, 

Catalino Dureza M.D., Inc., 

Neuro Application Services Corp.

Defense Attorney(s):

Stephen L. Hewitt; Hewitt & Truszkowski; North Hollywood, CA, for Michael Johnson ■ James R. Rogers; Law Office of James R. Rogers; Solana Beach, CA, for Richard Spain ■ None reported; for Frank R. Putman, Catalino Dureza, M.D., Shahram Ehteshami, M.D., Catholic Healthcare West, Catalino Dureza M.D., Inc., Neuro Application Services Corp.

Defendant Expert(s):

David Fish; Physical Medicine; Santa Monica, CA called by Stephen L. Hewitt, James R. Rogers ■ David Frecker; Neurology; Santa Barbara, CA called by Stephen L. Hewitt, James R. Rogers ■ Laura Dolan; Economics; Costa Mesa, CA called by Stephen L. Hewitt, James R. Rogers ■ Stacy Helvin; Life Care Planning; Yorba Linda, CA called by Stephen L. Hewitt, James R. Rogers ■ Thomas Chen; Neurosurgery; Los Angeles, CA called by Stephen L. Hewitt, James R. Rogers

Insurer(s):

American International Group, Inc. (AIG) for Michael Johnson and Richard Spain

Facts:

On Feb. 23, 2009, plaintiff Charlene McKnight, an unemployed 48 year old, underwent surgery on her thoracic spine. The procedure was performed by Dr. Catalino Dureza, a neurosurgeon, at Mercy Hospital in Bakersfield. McKnight had a significant pre-existing back condition that caused her severe pain and loss of sensation/mobility. She had undergone multiple extensive spinal surgeries in 2002, following a serious motor vehicle accident, and had a titanium Harms cage and fixation hardware implanted in her thoracic spine at the T6 level. Over time, her spine degenerated, causing increasing cord compression, and McKnight became dependent on heavy doses of medication to treat her chronic, disabling back pain. As a result, McKnight consulted with Dureza on Feb. 2, 2009, and decided to undergo surgery. Dureza performed a decompression of McKnight's thoracic spinal cord on Feb. 23, 2009, to replace some of the fixation hardware and to insert a new expandable cage to correct the abnormal curvature of the spine. For the surgery, intraoperative neuromonitoring was performed by neurodiagnostic technologist Michael Johnson, who was hired and trained by Richard Spain, also a neurodiagnostic technologist with Neuro Application Services Corp. (Spain was not present during the procedure, and his only involvement was via phone contact with Johnson.) Another employee of Neuro Application Services, Frank Putman, also came into the surgery at one point in order to relieve Johnson for a break. During the surgery, there was a loss of signal, but the procedure continued without any action being taken about it. However, after the surgery, McKnight informed Dureza that she could not move her legs. As a result, Dureza returned McKnight to surgery approximately 14 hours later for exploration, but found no cause for the paralysis. After a week of no improvement, Dureza ordered a CT myelogram that revealed a hidden bone fragment at T5. Dureza then took McKnight back to surgery a third time and removed the fragment, but only after removal of the T5 vertebra and extensive replacement of the spinal hardware. McKnight was rendered a paraplegic. McKnight sued Dureza; the medical office of Catalino Dureza, M.D., Inc.; Johnson; Spain; Putman; the employer of Johnson, Spain and Putman, Neuro Application Services Corp.; the assistant surgeon, Shahram Ehteshami, M.D.; and Catholic Healthcare West, which was doing business as Mercy Hospital. McKnight alleged that the defendants failed properly perform the decompression surgery, and that this failure constituted medical malpractice and professional negligence. Ehteshami and Neuro Application Services were dismissed for a cost of waiver. Dureza and his medical office settled prior to trial for $975,000, Catholic Healthcare West settled for $1.9 million, and Putman settled for $100,000. The matter then proceeded to trial against Johnson and Spain only. McKnight's counsel argued that Johnson was negligent for failing to notify Dureza of a significant loss of signal during the surgery. Counsel contended that had Dureza been notified of the signal loss, he would have had six to eight hours to obtain a CT myelogram, discover the bone fragment, remove it, and prevent paralysis. McKnight's counsel also argued that Johnson failed to advise Dureza before the surgery commenced that a neurologist was not available to remotely monitor the procedure and that had Dureza been notified, he would not have gone forward with the surgery. McKnight's counsel further argued that Spain was negligent for failing to adequately train Johnson, for assigning an inexperienced technician to a complex surgery, and for providing a blind diagnosis over the phone when Johnson called him for advice during the surgery. Thus, counsel contended that Johnson and Spain's negligence resulted in Dureza being unable to take corrective action to identify and relieve spinal cord compression at T5, and possibly prevent paralysis or other significant neurologic dysfunction. Johnson claimed he did notify Dureza of both the signal loss and the fact that the remote monitoring neurologist was not available. He also claimed that he discussed the signal loss with Spain by telephone. However, Johnson claimed that even though Dureza knew of the signal loss, the surgeon chose not to investigate it during the procedure. He also noted that Putman, who came into the surgery to relieve him for a break, also noted the loss of signal and told Dureza about it, but that the doctor took no action and continued with the procedure. In addition, Johnson claimed Dureza had knowingly gone forward with surgeries in the past when a monitoring neurologist was not available. Spain claimed that he appropriately responded to Johnson's phone call during surgery, but that neither he nor Dureza had a recollection of being told about the loss in signal. However, Spain maintained that Johnson was competent and properly trained. Both Johnson and Spain contended that they did not cause McKnight's paralysis. Their counsel argued that Dureza was negligent for failing to timely order a CT myelogram, which was the only procedure that would have identified the bone fragment, and for not immediately ordering the study upon learning McKnight was paralyzed so that he could have more quickly diagnosed and removed the bone fragment. Thus, counsel argued that based on Dureza's postoperative action in failing to timely order a CT myelogram despite knowing that McKnight was paralyzed, it was pure speculation to assume Dureza would have done anything different during surgery, regardless of what he was told intraoperatively.

Injury:

McKnight claimed she was rendered paraplegic (below the T6 vertebra) due to the defendants' malpractice and negligence. She alleged that she was an active, vivacious person prior to her paralysis, despite her pre-existing back trauma, but that due to her inability to walk, she can no longer go on trips with her family. Thus, McKnight sought $502,000 in past medical costs, $6.3 million for her life care plan, and $40 million in damages for her past and future pain and suffering. Counsel for Johnson and Spain argued that McKnight's spine would have continued to deteriorate and that she would have required further surgery, even if Dureza had successfully completed the surgery, as the procedure would not have fully corrected the curvature of McKnight's spine. Counsel also argued that McKnight only required six hours a day (160 hours a month) of attendant care, that four hours a day was already being paid for, and that 24-hour-a-day care was unhealthy for McKnight and would prevent her from becoming more independent. The previous trial judge ruled on summary adjudication that Johnson and Spain were not covered by MICRA because they were not licensed health care providers, as defined in Civil Code section 3333.1 et. seq., and were not agents of Dureza or Catholic Healthcare West. Counsel for Johnson and Spain argued that Catholic Healthcare West had delegated its responsibility of providing intraoperative neuromonitoring (a healthcare service) to its patients and surgical staff, and that the neuromonitoring technologists were the agents or legal representatives of Dureza and Catholic Healthcare West and were integral members of the surgical team, such that they should be entitled to the same MICRA protections as the hospital and Dureza.

Result:

The jury found Spain 50 percent at fault, Johnson 30 percent at fault, and Dureza (who had previously settled) 20 percent at fault. It also found that McKnight's damages totaled $26,802,018.62. After a reduction of non-economic damages based on the percentage of fault found against Spain and Johnson, as well as an offset for the prior settlements, the verdict award was reduced to $20,003,701.12.

Charlene McKnight: $502,019 Personal Injury: Past Medical Cost; $6,300,000 Personal Injury: Future Medical Cost; $3,000,000 Personal Injury: Past Pain And Suffering; $17,000,000 Personal Injury: Future Pain And Suffering

Actual Award:

$22,568,559.33

Trial Information:

Judge:

David R. Lampe

Demand:

$1 million each from Johnson and Spain

Offer:

$300,000 to Johnson and Spain (combined)

Trial Length:

1  months

Trial Deliberations:

4.5  hours

Jury Composition:

6 male/ 6 female

Post Trial:

The trial court awarded McKnight $2,564,858.21 in prejudgment interest, resulting in a net recoverable judgment of $22,568,559.33. Counsel for Spain and Johnson will file motions for a new trial and judgment notwithstanding the verdict.

Editor's Comment:

This report is based on information that was provided by plaintiff's counsel and counsel for Spain and Johnson. Counsel for the remaining defendants were not asked to contribute.