Mississippi Appellate Court Affirms Medical Malpractice Defense Verdict For Back Surgeon

The Court of Appeals of the State of Mississippi (“Mississippi Appellate Court”), in its opinion filed on April 2, 2109, affirmed a defense verdict in a Mississippi medical malpractice case, finding sufficient evidence to support the verdict, that the verdict is not against the weight of the evidence, and that no reversible error occurred during trial.

The Underlying Facts

The defendant neurosurgeon performed a transforaminal lumbar interbody fusion (TLIF) on the plaintiff in February 2007 during which he inserted four pedicle screws into the plaintiff’s pedicles at the L5-S1 region of the spine. A TLIF is a surgical procedure that attempts to fuse vertebrae in order to stabilize the patient’s spine. A rod is used to hold the vertebra together to allow fusion to occur. The rod is held in place by “pedicle screws,” which the surgeon must insert into the pedicles. The pedicles are bony projections that extend from the back of the vertebra on either side. The pedicles help to protect the spinal canal and the spinal nerves.

The pedicle screws must be inserted into the pedicle at an angle because of the length of the screws and because the goal is to get as much bony purchase as you can without traversing the area where the nerves are. The screws should enter the vertebral body through the pedicle and should not breach the wall of the pedicle and enter the spinal canal. The spinal nerves are located inside the spinal canal, so a screw that breaches the spinal canal has the potential to impinge on the spinal nerves and cause pain.

In July 2010, a CT myelogram showed that one of the pedicle screws inserted during the plaintiff’s TLIF had breached her spinal canal and was touching spinal nerves. Surgery was performed by another surgeon in August 2010 to remove the pedicle screws and other hardware from the plaintiff’s lower back.

In August 2011, the plaintiff filed her Mississippi medical malpractice lawsuit against the defendant neurosurgeon who had performed her TLIF. The defendant neurosurgeon denied that he misplaced the pedicle screw and denied that any breach of the spinal canal occurred during the plaintiff’s surgery. The defendant neurosurgeon testified that the screw at issue must have moved or migrated after the plaintiff left his care. The defendant denied that he breached the standard of care, and he denied that the plaintiff’s pain was caused by the pedicle screw.

The defendant’s own medical expert testified during trial that the screw was misplaced during the surgery and that there was a breach of the spinal canal during the surgery. However, the defendant’s expert testified that migration possibly could occur “if you had terribly soft bone” and that, despite misplacing a screw, the defendant neurosurgeon met the standard of care both during and after the plaintiff’s surgery. The defense expert also testified that the pedicle screw that had breached the spinal canal was not the cause of the plaintiff’s continuing pain: the continuing pain was a result of a nonunion (a failure to achieve a solid fusion of the vertebrae).

One of the plaintiff’s medical experts testified during trial that an initial misplacement of a pedicle screw is not malpractice and that a certain percentage of screws are misplaced even with surgeons who meet the standard of care. However, the expert testified that it is a breach of the standard of care to fail to recognize and correct the error during the surgery by removing and repositioning the screw (the intraoperative fluoroscopy images clearly showed that one of the four pedicle screws was misplaced and had breached the spinal canal, which the defendant should have recognized the misplacement and corrected it during the surgery).

After deliberating for approximately eight hours, the Mississippi medical malpractice jury returned a verdict in favor of the defendant neurosurgeon, finding that the defendant was not negligent by deviating from the standard of care. The plaintiff appealed.

Mississippi Appellate Court Opinion

The Mississippi Appellate Court held: “In this case, these well-settled principles require us to affirm the judgment entered on the jury’s verdict and the trial judge’s denial of a new trial. A rational jury could have found [the defendant’s] testimony credible. The jury could have believed [the defendant] that he used the ball probe to check carefully for any breach of the spinal canal. The jury could have concluded that [the defendant] would have detected a breach of the spinal canal if one had occurred. And the jury could have concluded that [the defendant] did not find a breach because there was none. Thus, the jury could have found that [the defendant] did not misplace the screw, that he met the standard of care, and that the screw moved or migrated after [the plaintiff] left his care … the jury was free to reject … evidence “entirely” and give greater weight to the testimony of [the defendant], who consistently maintained that he did not misplace the screw during the surgery.”

The Mississippi Appellate Court held: “Because the conflict in the expert testimony was an issue for the jury to decide, the trial judge did not abuse his discretion by denying [the plaintiff’s] motion for a new trial. And because there was legally sufficient evidence to support the jury’s verdict, the trial judge did not err by denying [the plaintiff’s] motion for JNOV.”

Source Knight v. Clark, No. 2017-CA-00722-COA.

If you or a loved one were injured due to medical negligence in Mississippi or in another U.S. state, you should find a medical malpractice attorney in Mississippi or in your state who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Wednesday, April 17th, 2019 at 5:30 am. Both comments and pings are currently closed.

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