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| Disposition:
(Settlement/Arbitration/Trial) |
Arbitration |
Date: |
1/3/1996 |
Type of Case: |
Medical Malpractice |
Allegation(s): |
Diskectomy |
Result: |
$250,000 award |
Case Name: |
Jensen v. Mark Stern, M.D. |
Facts: |
In January 1991, 52-year-old claimant Merle Jensen, a cafeteria worker, sustained a back injury following a fall at work. After x-rays revealed a Grade I spondylolisthesis at L4-5 with radiculopathy, and following a conservative course of treatment which did not significantly improve her condition, plaintiff was referred to respondent Mark Stern, M.D. Dr. Stern performed surgery on plaintiff on July 15, 1991. His preoperative diagnosis was segmental instability at L4-5 with lithiasis and disc herniation at L4-5, and right sciatica. His postoperative diagnosis was the same, except for dysplastic pedicles at L-4 on the right side, for which he was forced to use a "claw configuration" on that side. He did an instrumental fusion at L4-5 with the use of pedicle screws on the left, and a "claw configuration" extending from L3 to L5.
Claimant's condition improved until October 1991, when she began to experience discomfort. X-rays revealed that one or more of the pedicle screws used for fixation were not in the pedicles but in soft tissue. Claimant returned to work in January 1992, with respondent's permission, but complained to him the following month of a recurrence of dysfunction in her right leg and back. A CT scan and lumbar myelogram indicated that none of the pedicle screws were in the pedicles but in soft tissue, that portions of the fixation devices were fractured, and there was a developing spondylolisthesis that had not existed prior to surgery by respondent.
Claimant, who alleged that these problems were not disclosed to her, was further evaluated in January 1993 by a neurosurgeon who recommended removal of the fixation devices. In April 1993, she was then evaluated by an orthopaedic surgeon who determined that claimant had scoliosis concave to the right produced by the instrumentation utilized by respondent. Claimant underwent further surgery by the orthopaedic surgeon in July 1993.
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| Injury/Injuries: |
Contraindicated diskectomy for spondylolisthesis; repair surgery; chronic pain; depression; permanent disability.
Past medicals: $50,000
Future lost earnings: $10,000-$20,000
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| Contentions: |
Claimant contended that respondent was negligent in performing the surgery in question. Claimant contended further that respondent breached his fiduciary duty by concealing that the surgery had created significant instability in her back which would worsen without surgical intervention.
Respondent contended there was no breach of fiduciary duty. He admitted liability shortly before arbitration on the day before the deposition of his designated expert on the standard of care.
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| Special Notes: |
The award
was for general damages only. The California
statute governing medical malpractice
cases (MICRA) caps the amount of general
damages (emotional distress) in medical
malpractice cases at $250,000.
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