Medical law case on point: financial motive admissible in 'unnecessary surgery' case.

CASE ON POINT: Martinez v. Elias, 1-08-0265 (12/28/2009)-IL

ISSUE: Ordinarily the admissibility of evidence in support of allegations that a physician's motive for performing a surgical procedure in a medical malpractice case would not be admissible. However, in this extraordinary Illinois case, the trial court ruled that the alleged victim could not be prohibited from introducing evidence of financial gain in a case involving allegations of 'unnecessary surgery.'

CASE FACTS: On November 14, 2000, Thomas Martinez, a journeyman carpenter, injured his lower back and right shoulder at work, lifting a sheet of drywall. Thomas, who forty-two years-old, had underlying degenerative dise disease at multiple levels of the lumbar spine. His primary care physician referred him to Dr. Samuel Elias, an orthopedic surgeon. Dr. Elias treated Thomas from January 11, 2001, to April 30, 2002. During his initial visit, Thomas complained of daily, debilitating shoulder and back pain, which affected his ability to run, take long walks, and to lift anything more than light weights. Thomas complained that his back was stiff in the mornings and while sitting or driving; the stiffness prevented him from sitting in one place for longer than an hour or two. He rated his pain at three to four, on a scale of ten. He felt that he could not return to work given his pain. On January 23, 2001, an MRI of the spine was performed. The MRI showed the L2-L3 disc was normal, with degenerative disc disease and mild stenosis at L3, L4, and L5-S1, and neuroforaminal narrowing and end plate changes at all three levels. An x-ray taken January 26 showed a herniated disc at L4-L5. An EMG performed January 27 showed mildly active right radiculopathy, radiating pain, involving the L5-Sl level. Dr. Elias discussed the results of the tests with Thomas and recommended a discogram to confirm the diagnosis and identify the specific pain sites. On May 7 Thomas saw another orthopedic surgeon, Dr. Howard Freedberg. Dr. Freedberg diagnosed Thomas with degenerative disc disease. Thomas returned to see Dr. Elias on July 26, 2001, reporting his pain as a seven on a scale of ten. Again, Dr. Elias recommended a discogram to confirm disc abnormalities. On August 1, 2001, Dr. Elias performed the discogram. Dr. Elias concluded that Thomas had herniated discs at L3-L4, L4-L5, and L5-S1, with grade five, through and through, annular tears at these levels. Dr. sElias recommended an endoscopie discectomy at L3-L4 and L4-L5 and the IDET procedure at L5-S1, as soon as possible. Dr. Elias performed the procedure on December 28, 2001. Following the procedure, Thomas experienced pain in his right leg for the first time. On April 25, 2002, Thomas saw Dr. Francisco Gutierrez, an orthopedic surgeon, complaining of pain in the lower lumbar area, radiating to the posterior area of his right leg. Dr. Gutierrez recommended lumbar fusion surgery to open the disc space, relieve nerve compression and to stabilize Thomas' lumbar spine. On December 11, 2003, Thomas filed suit against the defendants, claiming Dr. Elias breached his duty of care by his performance of 'unnecessary surgery' on his spine and back on December 28, 2001. Further, he alleged that Dr. Elias' negligence caused him severe and permanent injury. After a hard fought jury trial in each sides' expert medical witnesses opined for, and against, the respective parties. The trial court entered judgment for Thomas on a jury verdict for approximately $500,000. The defendants appealed.

COURT'S OPINION: The Court of Appeals of Illinois affirmed the judgment entered by the lower court. The court held, inter alia, that the trial court had not abused its discretion in denying the defendants' motion that Thomas be prohibited from introducing evidence of 'financial reward' as a motive for what was alleged to have been 'unnecessary surgery' performed by Dr. Elias.

LEGAL COMMENTARY: The court found that Thomas had a right to introduce evidence of financial gain as a motive for the alleged unnecessary surgery performed by Dr. Elias. While the court recognized that evidence of financial gain might not be admissible in the ordinary medical malpractice suit, it pointed out that this was not the ordinary medical malpractice suit. The court noted, with specificity, that Thomas' suit was predicated on allegations that Dr. Elias had performed 'unnecessary surgery' on him. This, the court found, added another dimension to what might be considered a routine medical malpractice case, so-called. Thus, the court concluded that the trial court had not abused its discretion in allowing Thomas to introduce evidence of financial gain as an alleged motive for the performance of the unnecessary surgery. Editor's Note: without reference to whether the jury was right or wrong in this case, no physician should ever perform any procedure whatsoever if he or she is motivated by financial gain to any degree whatsoever! Any physician, surgeon, or other health care provider who might ever recommend a course of treatment, motivated by financial gain to any degree whatsoever, should be subjected to the severest of sanctions!

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