$1,300,000 – Medical Malpractice/Negligence
A 51-year-old small business owner suffers permanent nerve injury from negligent repair of dural tears made by an orthopedic surgeon during spine surgery resulting in cauda equina syndrome.
Ms. JB, 51, a small business owner, had a history of low back pain and sciatica. Her symptoms worsened over the years and she went to see orthopedic surgeon Jeffrey Schiffman. Based on his exam of JB, Dr. Schiffman’s impression was that she had three-level lumbar spondylolisthesis and right sciatica. An MRI confirmed her severe spinal stenosis, and Dr. Schiffman recommended an anterior lumbar interbody fusion from L3-L5 and posterior laminectomy bilaterally.
On June 1st, JB underwent an anterior lumbar fusion and posterior laminectomy performed by Dr. Schiffman. The surgery involved two separate procedures: a posterior laminectomy followed by an anterior fusion in which bone dowels were used with the intent to create stability in the spine. According to the operative report, during the surgery, dural tears were created in several spots. Dr. Schiffman admitted that he created at least three dural tears during the procedure.
Dr. Schiffman used thrombin-soaked Gelfoam (known to expand and specifically contraindicated for use during laminectomy) and thrombin spray to control bleeding. Then, rather than suturing the dural tears, Dr. Schiffman used a DuraPatch which he cut to size and laid over the dura. He did not suture the DuraPatch in place as the product’s Instructions for Use recommended. He then covered the entire patch area with two layers of DuraSeal, a synthetic hydrogel intended to provide a watertight seal of a dural repair. DuraSeal is a product known to expand up to 50 percent or more of its size over the course of several weeks after it is placed. According to the intraoperative records, Dr. Schiffman used two 5ML syringes of DuraSeal during the procedure.
Finally, in July, at the insistence of JB, Dr. Schiffman ordered an MRI which showed a mass lesion at the L4-5 level. This mass compressing the nerves from either inside the dura, outside the dura, or both. Despite these suspicious findings, Dr. Schiffman felt there was no need to re-operate. JB’s symptoms continued to advance along with pain in her legs and heaviness in her feet.
Frustrated with her situation, JB began investigating further workup of her issues. She insisted on a CT myelogram, which was done September 17th, which revealed a large mass in her lumbar spine with a complete blockage of contrast material at the L4-5 level. JB returned to Dr. Schiffman for the last time on September 20th accompanied by a friend. In response to JB’s frustration with her current physical condition, Dr. Schiffman allegedly simply told her to sue him.
At this point JB sought treatment with other surgeons and physicians. Doctors tested her sphincter muscle, which was found to be very weak, and a colorectal surgeon confirmed that her inability to defecate was due to neurologic injury. Her urologist has also confirmed that she has a neurogenic bladder causing her inability to void.
In a subsequent repair surgery by Dr. Sanjay Ghosh in November, Dr. Ghosh found a large amount of what he described as “tissue glue” (made up of a foreign substance, probably DuraSeal, blood and scar tissue) that was causing compression and narrowing of the spinal canal at the L4-5 level. The mass of gel was large enough to deflect and deform the dura in a significant manner. Other findings by Ghosh included a herniated nerve rootlet as well as nerves encased in scar tissue plugging the dural defect and effectively sealing it.
JB alleged that Dr. Schiffman was negligent in his repair of the dural tears he caused during the June 1st surgery. She further alleged that Dr. Schiffman had an opportunity post-operatively to diagnose and repair the nerve compression before claimant’s nerve injury became permanent, and he did not.
Cauda equina syndrome; arachnoiditis.
There was no dispute that JB suffers from cauda equina syndrome causing dysfunction of her bowel and bladder, sexual dysfunction, and chronic pain. In addition to suffering from cauda equina syndrome, as a result of Dr. Schiffman’s negligence, JB also has arachnoiditis, which causes normal nerve roots floating in cerebral spinal fluid to become inflamed, clump together and become sticky. This is usually caused by trauma associated with spinal surgery. Every couple of hours JB needs to catheterize herself in order to urinate. If she doesn’t, she will have an accident. The only way she is able to have a bowel movement is by digitally disimpacting her bowel.
At times the neuropathic pain and pressure on her rectum are debilitating. She is afraid and is embarrassed when she has an “accident” in public places and in front of people she knows. She has chronic neuropathic pain in her legs.
She must use narcotic drugs on a daily basis in an effort to deal with the pain. She suffers from sexual dysfunction due to the saddle anesthesia she experiences. At age 51, JB will never be the same. Every aspect of her life has changed and she is now plagued by chronic, intractable pain. She is no longer employable in the open market and suffers from a loss of her earning capacity.
At the arbitration hearing JB presented expert testimony that these findings are not consistent with a properly performed dural repair.
Dr. Schiffman contended that the dural tears were known complications of this type of procedure; that he did a proper repair; that there was no evidence of compression after the surgery and therefore, no delay in dealing with the problem. Defendant also alleged that many of JB’s problems were as a result of a pre-existing condition.
Claimant’s last settlement demand to Dr. Schiffman prior to arbitration was $1.695 million. Dr. Schiffman made no offer prior to arbitration. At the conclusion of the arbitration, the arbitration panel notified counsel that they had found 3-0 in favor of claimant, and indicated they would give the parties 10 days to “resolve” the matter before they issued their final award. The matter settled for $1.3 million.