Case details

Second surgery did not need to be performed immediately: defense





Result type

Not present

concentration, impairment, mental, nerve damage, neurological, neuropathy, psychological
On Dec. 29, 2011, plaintiff Larry Pearson, 53, a self-employed worker in the construction industry, underwent an anterior lumbar interbody fusion by Dr. Eric Lin, an orthopedic spine surgeon, at St. Jude Medical Center. The surgery was performed without the assistance of intraoperative neuromonitoring and no complication was appreciated intraoperatively. In addition, a fluoroscopy performed at the end of surgery failed to reveal any problem. Pearson previously presented to his primary care physician on October 20, 2011 and complained of right-sided neck, arm, and upper back pain. As a result, Pearson underwent X-rays of the cervical and thoracic spine, which were determined to be within normal limits. However, an X-ray of the lumbar spine revealed significant loss of disc height at L5-S1, leading the primary care physician to refer Pearson to Lin. By the time he first presented to Lin’s office on Nov. 2, 2011, Pearson’s complaints of pain were documented to have become focused on the lower back, radiating down the left leg, and to have been present for years. As a result, Lin ordered an MRI of the lumbar spine, which was performed on Nov. 10, 2011. He then met with Pearson and Pearson’s wife the next day to discuss the results of that imaging study. Lin advised the Pearsons that the MRI revealed that the L5 vertebral body had collapsed onto the S1 vertebral body, resulting in a marked loss of disc height and creating bilateral foraminal stenosis (compressing the L5 nerve and causing the complaints of pain in the left leg). Options were subsequently discussed, and Pearson and his wife opted for surgical intervention, which was performed on Dec. 29, 2011. After the December 2011 surgery, Pearson began complaining of excruciating lower back and buttock pain, now radiating into his right leg within 24 hours of the procedure. On Dec. 30, 2011, a CT scan was performed, which revealed that a bone fragment had fractured off the posterior aspect of the L5 vertebral body, impinging on the L5 nerve bilaterally as it entered the neural foramen. Presuming the bone fragment to be the cause of the patient’s new right-sided symptoms, Lin met with Pearson and his family, and offered to return Pearson to surgery immediately. However, he also cautioned Pearson and the family that his usual surgical team was unavailable due to the end-of-year holidays and that he would recommend waiting for the second surgery until Jan. 3, 2012 so that he could operate with his usual operating room team in place. As a result, Pearson elected to follow his advice to wait. The proposed second surgery was ultimately performed on Jan. 3, 2012, and the bone fragment was removed from the right side of the spine. Pearson initially experienced significant improvement in regard to his right-sided pain, and was discharged home from the hospital on Jan. 5, 2012. Unfortunately, within a few days thereafter, the right-sided pain returned at a severe level and has remained in place ever since. Pearson now requires high-doses of narcotic pain medications, rendering him incapable of returning to gainful employment in any capacity. Pearson sued Lin; St. Jude Medical Center; and Lin’s medical group, St. Jude Heritage Medical Group. Pearson alleged that Lin was negligent in his treatment and that his negligence constituted medical malpractice. He also alleged that St. Jude Medical Center and St. Jude Heritage Medical Group were liable for Lin’s actions. Prior to trial, St. Jude Heritage Medical Group and St. Jude Medical Center were voluntarily dismissed from the case. Thus, the matter continued against Lin only. Plaintiff’s counsel agreed that the fracture of the L5 vertebral body during the Dec. 29, 2011 surgery was a known and accepted risk of that surgery. However, counsel argued that Lin’s treatment of Pearson fell below the standard of care by failing to utilize neuromonitoring during the anterior lumbar interbody fusion surgery on Dec. 29, 2011 and by failing to timely return Pearson to surgery once the complication was discovered on the Dec. 30, 2011 CT scan. Counsel also argued that Lin’s treatment of Pearson fell below the standard of care by failing to recommend and attempt conservative therapy, such as physical therapy, before proceeding with a surgical option. The plaintiff’s expert orthopedic surgeon testified that each of the three measures alleged by plaintiff’s counsel were required by the standard of care. He also opined that the need for surgery would have been averted to a reasonable medical probability if physical therapy had been attempted, since better than 50 percent of all patients with back pain improve sufficiently with physical therapy and avoid surgery. The expert also opined that neuromonitoring during the Dec. 29, 2011 surgery would have alerted Lin to the vertebral body fracture and the resulting nerve impingement when it happened, which would have allowed Lin to promptly address that complication, minimizing the amount of time that the L5 nerve root was compressed. Furthermore, the orthopedic surgery expert testified that there was no good reason to delay surgical intervention once the complication was identified on the CT scan and that Pearson’s post-operative result would have been significantly improved if the acute nerve compression had been relieved sooner than Jan. 3, 2012. Lin claimed that he explained to the Pearsons that the treatment options included conservative therapy, such as epidural steroid injections, but that any such conservative therapy would likely only result in temporary benefits. Thus, Lin claimed that he explained to the Pearsons that in order to address the structural spine issue, surgical intervention in the form of an anterior lumbar interbody fusion was the only definitive treatment. Defense counsel contended that Pearson presented with a structural problem in his spine at L5-S1 and that conservative therapies could not be expected to provide Pearson with any meaningful relief of his symptoms. Moreover, counsel contended that any relief that could be obtained from conservative therapy was overwhelmingly likely to be temporary in nature since that therapy would do nothing to address the structural problem (severe loss of disc height at L5-S1). Given the reality presented by defense counsel, the defense’s expert orthopedic surgeon testified that the standard of care did not require Pearson to be offered physical therapy or any further conservative therapy prior to proceeding with surgery. The expert also opined that the Dec. 29, 2011 surgery was performed within the standard of care in all respects and that the fracture of the L5 vertebral body was a known and accepted risk of that surgery. In addition, the defense expert disagreed that neuromonitoring for an anterior lumbar interbody fusion was required by the standard of care since the nerves are not being directly manipulated and the results of neuromonitoring are not reliable enough, or specific enough, to have warned Lin about the complication that occurred during the surgery. Moreover, the expert testified that given that the nerves are indirectly manipulated during the reconstruction of the disc height, along with the impact of anesthesia and vascular structures being retracted, changes in neuromonitoring would be expected and that those nonspecific changes in the neuromonitoring would not trigger any extraordinary investigation or exploration beyond the fluoroscopy at the end of surgery (that did not reveal the complication). Specifically, the expert explained that given that Pearson failed to complain of his right-sided pain until 24 hours after surgery, it was quite likely that neuromonitoring would not have revealed any changes at all due to the vertebral body fracture. Finally, the orthopedic surgery expert opined that there was no need to return Pearson urgently to surgery once the complication was appreciated on the CT scan of Dec. 30, 2011. The expert explained that the peripheral nerves, unlike the spinal cord itself, are tremendously resilient and withstand compression for months to years without any change in the outcome of surgery to relieve that compression. Accordingly, the expert opined that the standard of care did not require the second surgery to be performed any earlier than Jan. 3, 2012 and that the alleged “delay” in relieving the compression of the nerve had no impact on Pearson’s outcome., Pearson claimed that he experienced severe right-sided nerve pain ever since the Dec. 29, 2011 surgery. He alleged that as a result, he requires high doses of narcotic pain medications that leave him confused, irritable, and unable to concentrate. Pearson underwent a third spinal surgery to relieve any residual nerve root compression on May 6, 2013 and a spinal cord stimulator was implanted in his back. However, he claimed that none of the procedures or treatments has relieved his symptoms. Pearson claimed that since nothing has relieved his pain, he will be completely disabled for the remainder of his life. He also claimed that although he was previously self-employed in the construction industry, specifically with regard to telephone cable lines, his pain and medication render him incapable of returning to gainful employment in any capacity. Thus, Pearson sought recovery of between $335,000 and $650,000 in past loss of earnings and between $373,121 and $763,965 in future loss of earnings. He also sought recovery of $585,496 in future medical costs, based on the present value of the life care plan presented by the plaintiff’s life care planning expert, bringing the total claim for special damages to a maximum of $1,999,461 (present value). In addition, he sought recovery of damages for his past and future pain and suffering. Pearson’s wife, Kim Pearson, presented a derivative claim, seeking recovery for her loss of consortium. The defense’s expert neurologist examined Mr. Pearson in 2015 and testified that he diagnosed Mr. Pearson as suffering from Parkinson’s disease, unrelated to the spinal issues. However, plaintiffs’ counsel disputed the defense’s expert’s diagnosis, which was not reached by any treating physician or by the plaintiffs’ neurology expert.
Superior Court of Orange County, Orange, CA

Recommended Experts


Get a FREE consultation for your case