A workplace accident that required lumbar surgery resulted in a significant medical negligence settlement.
Our client, a 57-year-old woman, was driving a box truck when the truck left the roadway and violently bounced her. The vertical load placed on her spine caused her to suffer a compression fracture of her L2 vertebrae. She was taken to an area hospital where she was seen by a neurosurgeon. It was unclear whether she had any neurological deficits, but it appeared that her spine was unstable and thus, surgery was planned.
The physician elected to remove the fractured vertebrae and implant an expandable "VBR Cage." The physician had never used this particular cage before. Initially, the plan was to place the cage along with an anterior plate to fixate the spine in place while bone fused around the cage. At surgery, however, the surgeon elected not to utilize any rods or plates to stabilize the spine in addition to the cage. According to the surgeon, the patient's bones appeared stable and he felt the alignment of the spine without supplemental fixation was acceptable.
Furthermore, the surgeon intimated in a note in the chart that the patient may someday need pedicle screw surgery to deal with the normal degenerative changes in her spine and that this would not be feasible if an anterior plate was used. Following surgery, the patient's spine "failed" as the cage telescoped into the vertebral body below the level of the surgery. In addition, the cage rotated and caused a rotational deformity of the patient's spine. After a follow-up surgery by another surgeon in an attempt to salvage some stability, the patient required a walker and was permanently disabled.
Matt Birch and John Parisi of the firm were retained to explore the possibility of a claim. Investigation into the cage used in the initial surgery revealed that: 1) the VBR cage had not been approved by the FDA for use without supplemental fixation; and 2) according to the manufacturer's product literature, the cage was intended to be used with supplemental internal spinal fixation systems cleared by the FDA for use in the thoracic and lumbar spine. According to the manufacturer's website, additional instrumentation was required to prevent dislocation of the cage.
After negotiating with the patient's workers compensation carrier, a lawsuit was filed in Jackson County, against the neurosurgeon and his employer. The case proceeded through discovery with most of the focus being on the propriety of a "stand-alone" cage construct for the surgery. Following depositions, including the deposition of plaintiff's expert neurosurgeon, and mediation, the defendant settled for $1,137,500.00.
