Case details

Alleged injury were risks of procedures, doctor claimed





Result type

Not present

back, fracture, fusion, kyphosis, lordosis, lumbar, neck
On Jan. 8, 2008, plaintiff Howard McDonald, 49, a self-employed construction worker, was set to undergo spinal reconstruction surgery performed by Dr. Choll Kim, an orthopedic surgeon, at University of San Diego Medical Center. During the operation, McDonald’s bowel was perforated and then repaired. In order to repair the bowel during the same procedure, it required cutting open McDonald’s abdomen from the belly button up to his solar plexus to allow the removal of the intestines in order to visualize the perforation. As a result of the perforation, the planned spinal reconstruction surgery was postponed. On Feb. 28, 2008, the previously planned spinal surgery was performed by Kim, who also provided post-operative care. On June 27, 2008, an X-ray revealed the left lowermost screw at S1 had fractured. McDonald claimed he suffered kyphosis, loss of lordosis, non-union and continued pain, among other , and underwent multiple subsequent spinal surgeries. McDonald sued Kim and the operator of UCSD Medical Center, the Regents of the University of California, as well as Mark Kuper D.O., Steven Garfin M.D. and Justin Kubeck M.D. He alleged the defendants failed to obtain his informed consent for the bowel surgery or the February 2008 procedure, failed to properly perform either surgery, and failed to properly manage his post-operative care. McDonald alleged that these failures constituted medical malpractice. Defendants Kuper, Garfin and Kubeck were ultimately dismissed from the case prior to trial. McDonald claimed that he agreed to January 2008 spinal surgery, but that Kim lacked informed consent to perform the bowel repair. He also claimed that Kim failed to obtain his informed consent to perform the second surgery in February 2008. McDonald further claimed that Kim negligently performed both surgeries, resulting in the bowel perforation during the first surgery and a screw fracture during the second surgery. In addition, he claimed that Kim was negligent in the post-operative management after the second surgery. In total, the plaintiff’s orthopedic expert set forth over 15 theories of liability with regard to the care and treatment by Kim at UCSD Medical Center. Defense counsel argued that the bowel perforation during the January 2008 procedure was an inherent and recognized risk of the spinal reconstruction surgery, unrelated to any negligence. Counsel further argued that the second procedure on Feb. 28, 2008, was performed in a manner that was within the standard of care in all respects. In addition, defense counsel contended that all post-operative care was adequate and within the standard of care., McDonald sustained a bowel perforation on the original surgical date, causing a postponement of his spinal reconstruction. Following the second procedure, he suffered a fracture of the left lowermost screw at the S1 level. He alleged that negligence during those surgeries caused him to suffer kyphosis, or a curving of the spine that results in a bowing or rounding of the back, which resulted in a loss of lordosis, or the inward curvature of a portion of the lumbar and cervical spine. In addition, he alleged he suffered non-union of the spine, resulting in continued pain, among other . McDonald subsequently underwent hardware removal surgery by another surgeon in December 2008, followed by fusion surgery on December 2009. He then followed up with nine months of physical therapy. Despite the remove of the hardware and subsequent physical therapy, McDonald claimed continued chronic, unremitting pain and discomfort in his lower back. He also claimed chronic pain and eating complications resulting from his bowel perforation. The plaintiff’s treating physicians opined that McDonald could not return to work due to his condition, which resulted in his inability to stand, sit or walk for long periods of time. McDonald alleged that he previously had an active lifestyle, but that his incapacity also prevents him from engaging in sports. Thus, McDonald claimed $23,846 in past medical costs, and asked the jury for approximately $185,000 in damages for his past lost earnings, $390,000 in damages for his future lost earnings, and an unspecified amount of damages for his past and future pain and suffering. Defense counsel argued that the subsequent removal of the hardware by another treating physician caused McDonald’s kyphosis and loss of lordosis, and that the other alleged are inherent risks of the procedures. However, counsel contended that McDonald failed to provide sufficient documentation that any injury was caused by the defendants’ care and treatment. In addition, defense counsel contended that McDonald’s spinal alignment was maintained and that he will continue to heal.
Superior Court of San Diego County, San Diego, CA

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