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Did surgeon botch placement of plate & screws in patient?

PEGGY TREES UNDERWENT AN ANTERIOR CERVICAL DECOMPRESSION AND FUSION. In order to perform the procedure, her physician, Dr. Julio Ordonez, a neurosurgeon, had to approach through Peggy's neck and retract her esophagus, Hypopharynx, and trachea away from the anterior surface of her cervical spine. Dr. Ordonez removed hone and intervertebral material from the spaces between C4 and C5 and between C5 and C6 and placed bone grafts into the spaces between the vertebrae. Dr. Ordonez then stabilized the vertebrae and ** by affixing a titanium plate to the anterior surface of Peggy's cervical spine with hone screws driven into her vertebrae. He used a "size 28" Cervical Spine Locking Plate, which was affixed to the vertebrae by bone screws with expanding heads. To prevent the bone screws from "backing out," the doctor used had to insert and tighten "locking screws" into the heads of the bone screws. Approximately 36 hours after surgery, Peggy complained of severe neck pain and the sensation that she had a "plate in her throat." A subsequent image of the area showed a large abscess directly in front of the plate. During a second surgery to address the abscess, Dr. Ordonez discovered that the original surgical wound around the cervical spine was contaminated with oral bacteria and amylase, which could be caused by a perforated esophagus. He removed purulent material from the neck, installed a drain at C4, and began irrigating the sound with antibiotics. Despite these efforts, over the next several days, Peggy's condition worsened and she exhibited the beginning signs of paralysis. Peggy underwent three additional surgeries to remove epidural abscesses that were closing off her spinal canal. In the last of these surgeries, Dr. Silver, filling in the Dr. Ordonez, removed the plate, screws, and grafts installed in the first surgery and placed Peggy in a halo framework to stabilize her spine. Although her condition improved, she required additional surgeries in the months that followed. Ultimately, her entire cervical spine was fused and she now suffers from weakness in both arms, partial paralysis of the left upper arm, and unremitting pain, and she cannot work in her profession. Peggy filed a suit for medical malpractice against defendants seeking economic and noneconomic damages and alleged, inter alia, that Dr. Ordonez failed to exercise due care during the first surgery to avoid perforating her esophagus or hypopharynx. Specifically, Peggy alleged that Dr. Ordonez failed to properly place and secure the plate and its screws to the anterior surface of the vertebrae, which resulted in the perforation and erosion of her esophagus or hypopharynx. She alleged that he failed to properly place and secure the plate and its screws to the anterior surface of the vertebrae, which resulted in the perforation and erosion of her esophagus, or hypopharynx. She also alleged that he negligently failed to detect and repair the perforation, and she raised other questions relating to informed consent. After denying the defendants' motion for a directed verdict on causation, the court granted a directed verdict as to negligence concluding that expert testimony was required to demonstrate that Dr. Ordonez was negligent because it was not within the "capability of a jury to ascertain whether during an anterior cervical decompression and fusion surgery an esophageal perforation does not Occur unless someone was negligent."

THE COURT OF APPEALS OF OREGON AFFIRMED THE JUDGMENT ENTERED BY THE TRIAL COURT IN FAVOR OF ALL OF THE PHYSICIAN DEFENDANTS. The court held, inter alia, that the plaintiff's expert medical witnesses and testimony of the manufacturer unfairly attempted to compare the ideal placement of the surgical plates and screws with the defendant's placement of the plates and screws. The court stated with specificity that the defendant's actions must be compared to other neurosurgeons. Expert testimony is required to establish whether the defendant's surgery fell below the standard of care of a reasonable neurosurgeon performing the same surgery. The court observed that a directed verdict would have been appropriate only if the doctrine of Res Ipsa Loquitur (RIL) was applicable. The court found it did not apply.

OREGON COURTS HAVE BEEN RELUCTANT TO INVOKE THE DOCTRINE OF RIL IN MEDICAL MALPRACTICE CASES, EXCEPT IN FOREIGN OBJECT CASES. The court noted the reluctance is predicated on the concern that the doctrine will impinge on the "established principle that a physician is not a warrantor of cure, and if a good result does not ensue from his efforts, the doctrine of RIL is not readily available to a disappointed patient. Nevertheless, the doctrine may apply fit can be considered common knowledge among laymen that the injury would not have occurred without negligence and that the negligence was "more probably than not" attributable to the defendant. However, the court concluded that this case involved complex medical issues and it is not common knowledge among laymen that a perforated esophagus would not have occurred during surgery in the absence of negligence, and such negligence was "more probably than not" attributable to Dr. Ordonez, as opposed to someone else involved in the procedure or manufacture of the plate. Trees v. Ordonez, A 139093 ORCA (5/31/2012)-OR

A. David Tammelleo JD Editor & Publisher [C] 2012
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Author:Tammelleo, David A.
Publication:Medical Law's Regan Report
Geographic Code:1USA
Date:Jul 1, 2012
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