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Dural Tear, Defective Nerve Monitoring Equipment

$2,490,252 – Medical Fraud/Product Liability

Facts

A patient was permanently injured by a spine surgeon who was using defective nerve monitoring equipment during back surgery that did not register nerve injury.

This action arose out of a bilateral hemilaminotomy and foraminotomy (back surgery) at the L3-4 and L4-5 levels performed on John Doe by Defendant Surgeon, who was one of the founders of Defendant Corporation. During the course of the procedure, Defendant Surgeon used newly invented neuromonitoring equipment manufactured by Defendant Corporation. This equipment was designed to tell the surgeon when the surgical instruments were getting dangerously close to a patient’s nerves or spinal cord. While using the nerve monitoring equipment, Defendant Surgeon tore the patient’s dura (covering of the spinal cord) with surgical instruments designed and manufactured by Defendant Corporation. This tear or tears permanently injured the adjacent spinal nerves in Mr. Doe’s spinal cord and caused cerebrospinal fluid leakage.

Allegations/Contentions

Plaintiffs alleged that Defendant Corporation was liable for the acts of its employees and agents, including Defendant Surgeon, for negligence, battery and fraud. In addition, Plaintiffs brought the action against Defendant Corporation under a product liability theory as well as fraud, breach of fiduciary duty and breach of implied warranty. As to Defendant Hospital where the surgery occurred, plaintiffs alleged that proper procedures had not been followed to allow Defendant Corporation’s equipment to be in the operating room.

Defendant Corporation alleged they were not negligent, that its products were not defective in design and there was no causal connection between its products and Plaintiff’s injuries. They alleged the injuries were caused by the surgical negligence of Defendant Surgeon. They also alleged that plaintiff had lost his job for reasons unrelated to his health, that he was capable of finding similar employment, and there was no future income loss.

Injuries/Damages

Immediately after the surgery, plaintiff experienced cauda equina syndrome, dorsiflexion weakness of the left foot, loss of feeling in portions of the left leg, weakened plantar flexion, loss of feeling at S1-S4 bilaterally, difficulty standing and walking, right knee pain and discomfort, peri-scrotal and peri-rectal numbness, weak anal sphincter tone, loss of bowel and bladder function, flatulence, bowel and urinary incontinence, and sexual dysfunction. His wife claimed loss of her husband’s care, comfort, and society.

Special Notes

Defendant Corporation offered $800,000 to settle. Plaintiffs submitted CCP §998 offers to compromise (settle) with that defendant in the total amount of $1.284 million.

Plaintiffs had previously settled the medical malpractice portion of their action against Defendant Surgeon for policy limits in the amount of $980,251.98. Defendant Manufacturer/Corporation settled the case eight days prior to trial for $1,485,000. Defendant Hospital settled for $25,000.


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