On Nov. 16, 2015, plaintiff Christopher Tuosto, 63, an insurance salesman, underwent a total knee replacement at Dominican Hospital, in Santa Cruz. During the procedure, Dr. John Glina, an anesthesiologist, administered a spinal anesthetic. However, following the surgery, Tuosto allegedly experienced lower extremity paralysis and a non-functioning bladder. He claimed his condition was due to spinal cord damage at the L1 level. Tuosto sued Glina and Glina’s employer, Anesthesia Medical Group of Santa Cruz Inc. Tuosto alleged that Glina was negligent in the administration of the spinal anesthetic and for failing to obtain his informed consent. He also alleged that Glina’s negligence constituted medical malpractice and that Anesthesia Medical Group was liable for Glina’s actions. Tuosto claimed that he did not provide any consent for any form of anesthetic management, including spinal anesthesia, and that he never even met the anesthesiologist, Glina, before the operation. Tuosto admitted that he read, signed and accepted the risks of surgery consent forms, which included the “risks of anesthesia,” but that he did not sign a separate, written consent form for anesthesia. He also claimed that he advised his non-party orthopedic surgeon that he did not want a spinal anesthetic, but he admitted that he did not advise any anesthesiologist before the operation that he did not want a spinal anesthetic. Tuosto asserted that because he did not give any consent for any anesthesia, the administration of the spinal anesthetic constituted an intentional medical battery, for which he claimed damages not limited by the California cap on non-economic damages. Plaintiff’s counsel contended that in addition to failing to obtain Tuosto’s consent, Glina failed to properly document his spinal anesthetic, resulting in the placement of the spinal needle either into the conus medullaris or cauda equina, causing trauma to the lumbar spine. The plaintiff’s expert neurosurgeon opined that Glina placed the spinal needle at the L1 level. The expert testified that he assumed Tuosto had no pre-existing history of difficulty with ambulation or of a neurogenic bladder, and opined that because Tuosto had decreased reflexes post-operatively, it indicated an injury to the spinal cord at L1. The expert testified that he performed diffusion tensor imaging of the lumbar spine and that, based on those images, he opined that there was “discontinuity on the left [side] at the L1 level, affecting the cauda equina.” The expert also opined that, “on the left side of the spinal cord at L1, some of the proximal dorsal elements [were] seen to contact the dural margin” and that despite motion artifact secondary to patient movement during the MRI/DTI, the alleged area of injury was not an artifact (an anomaly seen during visual representation). The plaintiff’s anesthesiology expert testified that a separate written consent for anesthesia was required by the standard of care, and opined that Glina’s documentation of the administration of spinal anesthesia fell below the standard of care. Based upon the opinion of the plaintiff’s expert neurosurgeon, the expert anesthesiologist opined that there was a misplacement of the spinal needle approximately 5 inches proximal to where the needle should have been placed for a spinal anesthetic. Defense counsel noted that while Tuosto claimed he never met Glina before the operation, Tuosto was impeached on cross-examination when presented with his pre-trial answers to interrogatories, during which Tuosto stated that Glina “walked into the preoperative area and introduced himself” and that there was a discussion about the method of anesthesia. Defense counsel also disputed that Tuosto sustained any trauma to his lumbar spine. The defense’s expert anesthesiologist opined that the care and treatment provided by Glina complied with the standard of care. Defense counsel contended that, based on medical records from the Mr. Tuosto’s treating physical medicine and rehabilitation specialist, Mr. Tuosto had increased spasticity post-operatively, not decreased spasticity. Counsel also noted that the treating physician’s medical records stated that Tuosto developed decreased sensation in the legs and some bladder dysfunction following a prior hip surgery in 2010. Defense counsel noted that the plaintiff’s expert neurosurgeon admitted, on cross-examination, that if Tuosto had increased spasticity post-operatively, it would suggest an upper motor neuron injury, and not an injury at the L1 level. According to defense counsel, the plaintiff’s expert also admitted that post-operative MRI’s did not show evidence of an epidural hematoma, blood, fluid, scar tissue or any other abnormalities within the spinal cord and that a DTI is much more often utilized to evaluate white matter tracts in the brain, not in the spinal cord. The defense’s neuroradiology expert, the director of DTI at Stanford, presented a Power Point presentation of post-operative imaging of the lumbar spine and opined that there was no evidence of an injury to the spinal cord at any level. The expert also identified both axial and sagittal images to illustrate his opinion that there was no verifiable injury to the spinal cord, and testified that a DTI is not utilized as a diagnostic tool for the spinal cord in clinical practice. The defense expert was also presented with a “patent” allegedly held by the plaintiff’s expert neurosurgeon, and testified that the patent application included a diagram of the leg, and did not involve either the brain or the spinal cord. He further opined that there was no evidence of an epidural or spinal hematoma, an abnormality of the spinal cord at L1, or iron or blood, which might suggest residual injury at any level of the lumbar spinal cord. In addition, the expert neuroradiologist testified that the plaintiff’s expert neurosurgeon’s opinion was based on a non-diagnostic artifact and that to be a “real finding,” the abnormality should be seen in both axial and sagittal planes. However, the defense expert noted that the MRI ordered by the plaintiff’s expert neurosurgeon on Oct. 19, 2017, demonstrated that cerebrospinal fluid was present circumferentially around the conus at the L-1 level without arachnoiditis, which is a pain disorder caused by the inflammation of the arachnoid, one of the membranes that surround and protect the nerves of the spinal cord. As a result, the defense expert opined that since there was no inflammation shown on the MRI, there was no injury., Tuosto claimed that he suffered trauma to his lumbar spine, at the L1 level, which left him with lower extremity paralysis and a non-functioning bladder. Tuosto acknowledged that he had a history of motor vehicle accident in 1972, from which he suffered an incomplete spinal cord injury at the C6 level. However, he claimed that he was fully ambulatory with no bladder dysfunction prior to the subject anesthetic administration on Nov. 16, 2015, but that after the subject procedure, he was left non-ambulatory. He alleged that as a result, he requires 24/7 attendant care from his wife, and the use of a wheelchair and/or scooter for transportation. Tuosto sought recovery of $4.5 million in damages, including the loss of his insurance sales business. His wife, Elizabeth Tuosto, sought recovery of damages for the nursing services she provided her husband and for her loss of consortium. She estimated that her damages totaled $1.5 million. Defense counsel argued that Mr. Tuosto did not sustain any injury to his spinal cord from the anesthetic administration. The defense’s expert neurosurgeon opined that the constellation of Tuosto’s past medical history — including a cervical spinal cord injury, thoracic stenosis at T9-10, lumbar spine stenosis, weakness in the quadriceps and hamstrings, and loss of stability of the right knee joint following a prior total knee replacement — produced the deficits perceived by Tuosto post-operatively. Additionally, on cross-examination, the plaintiff’s treating orthopedic surgeon testified that he underestimated the impact of Tuosto’s pre-existing neurological injury, as well as the pre-existing weakness to Tuosto’s quadriceps and hamstrings, prior to performing the total knee replacement on Nov. 16, 2015. According to defense counsel, the plaintiff’s treating surgeon essentially admitted that Tuosto did not have the functional reserve for his body to tolerate the trauma of the total knee replacement.