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Medical Malpractice: Removal of Wrong Disc - $150,000 Settlement

Orthopedic Injuries-Removal Of Wrong Disc

Injuries alleged: Removal of wrong disc

Name of case: Withheld

Court/case #: Essex (no. withheld)

Tried before judge or jury: N/A

Amount of settlement: $150,000

Date: July 1997

Insurance carrier: Withheld

Attorney for plaintiff: Kenneth I. Kolpan, Law Office of Kenneth I. Kolpan, Boston

Attorney for defendant: Withheld

Other useful information:

On June 4, 1992, the 22-year-old plaintiff spoke with the defendant orthopedic surgeon about lower back pain. The defendant recommended bedrest for the plaintiff and ordered an MRI.

On June 12, 1992, the MRI report revealed disc herniation in of the L4 and L5. Six days later, the defendant noted in his record that the MRI shows a large herniated disc at the L4-5 level on the right with a free fragment.

On Aug. 11, 1992, the plaintiff underwent hemilaminectomy, disc excision and foraminotomy of the L5 nerve root performed by the defendant.

On Sept. 2, 1992, the plaintiff complained to the defendant of back ache, with pain and paraesthesia into the right leg. The plaintiff was last seen by the defendant on Jan. 4, 1993.

After several months of physical therapy, the plaintiff returned to his primary care physician's office on Feb. 1, 1994, complaining that the pain in his lower back and leg was worsening.

The plaintiff's condition continued to worsen. On June 8, 1994, the plaintiff visited a surgeon at Massachusetts General Hospital, complaining of the same lower back pain symptoms that he had experienced prior to his surgery performed by the defendant.

On June 21, 1994, the plaintiff had an MRI at the hospital, which showed evidence of an operation located at the L3-4 level, with no mention of a laminectomy at the L4-5 level. Rather, there was still a ruptured disc at L4-5.

On July 11, 1994, a computerized tomography showed that there was evidence of previous right L3-4 laminectomy. A right paracentral disc herniation was observed at L4-5, compressing the right L5 nerve root and right posterolateral outpouching of the thecal sac was described at L3-4, compatible with a history of prior decompressive surgery.

On July 12, 1994, the plaintiff was admitted to the Massachusetts General Hospital emergency room diagnosed with acute streptococcal meningitis and encephalitis. The plaintiff remained hospitalized for eight days, and repeat MRI confirmed previous L3-4 laminectomy and L4-5 disc herniation. The plaintiff was discharged from the hospital on July 20, 1994.

The plaintiff was subsequently seen by a neurosurgeon. The plaintiff was found to have a history of L4-5 discectomy, but evidence of previous surgery at the level above. More than 18 months after his first surgery, the plaintiff underwent right L4-5 foraminotomy and discectomy to decompress the plaintiff's right L5 nerve root. The plaintiff awoke pain free.

The plaintiff's expert orthopedic surgeon was prepared to testify that the defendant failed properly to locate the disc at L4-5 perioperatively via an intraoperative X-ray.

The defendant attempted to explain his actions by claiming he told the plaintiff that he would decide during the operation which disc(s) to remove. However, the defendant's pre-operative notations and post-operative reports made no mention of this supposed surgical plan.

At deposition, the defendant admitted that the plaintiff had symptoms consistent with L4-5 radiculopathy; he thought the plaintiff's nerve irritation was located at the L4-5 or L5,S1 areas; he did not ascertain from his clinical exam(s) what level was involved; and he relied upon the MRI report which showed a herniated disc at the L4-5.

Though it appeared in no record of the defendant or the defendant hospital, the defendant claimed at deposition he told the plaintiff that it was difficult to determine which of two discs were causing him pain.

The defendant asserted that he would decide which disc(s) to remove based on the amount of protrusion found during surgery and claimed that the L3-4 protrusion was greater than the L4-5 protrusion.

According to the plaintiff, the defendant removed one disc, did not look to see if there was any other disc protruding, and did not take any intraoperative X-rays to ensure he was operating at the intended site(s).

At the time of the plaintiff's deposition, the plaintiff had fully recovered from both of his surgeries, had returned to work full time and resumed his other activities.

The case settled for $150,000.

Published with permission of Massachusetts Lawyers Weekly.