Dorsal Column stimulator medical malpractice case settled by arbitration. Sheets v. Finkenberg and DOE Hospital

Disposition: (Settlement/Arbitration/Trial)	Arbitration
Date:	5/21/1998
Type of Case:	Medical Malpractice
Allegation(s):	Surgery to Replace Dorsal Column Stimulator
Result:	$800,000 from Finkenberg + $500,000 from DOE
Case Name:	*Sheets v. Finkenberg and DOE Hospital*
Facts:
Plaintiff, 55 years old, worked many years as a distributor of newspapers for the Union-Tribune Publishing Company. During his work of loading and unloading bales of newspapers from trucks, he suffered several back injuries which left him with chronic pain. He had several laminectomies and eventually a fusion in 1993. According to Dr. Altenau, the Plaintiff did well following these surgeries. However, he would wind up injuring himself again and eventually, additional surgery to the spine was not an option. In November of 1995, he underwent the placement of a dorsal column stimulator (DCS) by Dr. Altenau. The plaintiff achieved what Dr. Altenau described as "superb" relief of pain with this device, which delivers electrical stimulation to the spinal cord to block pain impulses. It was determined post-operatively that while the Plaintiff was getting good relief of pain in his low back and down his right leg, the lead for his left leg was not operating correctly. While Dr. Altenau had considered the placement of the DCS device to be successful and felt that it was probable that the device could continue to be used by the Plaintiff to provide him with pain relief, he referred him to Dr. Finkenberg to see if the device itself could be adjusted. It was intended that the plaintiff would return to Dr. Altenau for additional surgery if the device could not be adjusted. However, following the consultation with Dr. Finkenberg, Dr. Finkenberg had the plaintiff admitted to Doe Hospital on 5/13/96 to replace the faulty lead as well as the DCS device itself. Surgery was done without apparent complication, and the plaintiff was transferred to the medical-surgical floor for further recovery. As part of his post-operative care, Mr. Sheets was to undergo a complete neurologic assessment every three hours by the staffing nurse. A motor and sensory exam was performed at both 9:00 p.m. and 12:00 a.m. These examinations were completely normal. At 3:00 on the morning of the 14th, plaintiff's nurse did another complete assessment. At that time, his motor examination showed "0's" in his lower extremities, and showed that he had lost all sensation. According to the nurse, she contacted Dr. Finkenberg at 3:10 a.m. and notified him of the situation. Dr. Finkenberg allegedly advised the nurse to have Mr. Sheets lie still and he should be all right in the morning. Dr. Finkenberg testified in his deposition that the nurse called him and told him that the Plaintiff was having difficulty moving his legs but that he asked her three times if he was still moving his legs and she answered yes. Dr. Finkenberg also testified that he requested the nurse to follow up with the plaintiff more closely and make neurologic assessments every hour, and to let him know if there was any other change in his condition. The nurse disputes ever receiving this order. Nothing was done for plaintiff until after a second phone call was made by the same nurse to Dr. Finkenberg at 6:00 a.m. At that time, Dr. Finkenberg came into the hospital and went in to assist in surgery on another patient. The CT scan of plaintiff revealed an epidural hematoma causing significant compression on his thoracic spine. At 9:30 a.m., he was finally taken to the operating room where the hematoma was evacuated by Dr. Finkenberg. However, because of the sustained compression of the hematoma on his spinal cord, plaintiff is and will remain a paraplegic at level T-6.
Injury/Injuries:
Paraplegia at level T-6; wife sued for loss of consortium.
Contentions:
Dr. Finkenberg admitted that this situation constitutes a medical and surgical emergency and had further admitted that if the nurse relayed the information contained in the nursing records at 3:00 a.m. to him, the standard of care would have required him to immediately order a CT scan and immediately come and do a compressive procedure on an emergency basis. Either Dr. Finkenberg or Doe Hospital's nurses, or both, violated the applicable standards of care. Plaintiff's expert, Dr. Young, testified that had the standard of care been complied with, i.e., that a decompressive surgery was undertaken by as late as 6:00 a.m., that to a degree of medical probability, the plaintiff would be walking today and would have full urinary function and continence.
Special Notes:
Dr. Finkenberg was insured through C.A.P. with a $1 million policy limit. Based on the terms of the policy, its limit was constantly being reduced by any attorney fees and costs incurred by the insured. In September 1997, plaintiffs demanded the limits of Finkenberg's policy in full settlement of the matter. The case was subsequently settled as to DOE Hospital on the eve of trial. < back to Medical Malpractice Case Histories from The Law Offices of Robert Vaage and www.vaagelaw.com