SCULLIN, Senior District Judge.
On or about September 15, 2006, Plaintiff filed this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq., for injuries he sustained on or about November 4, 2004, during the course of an anterior cervical discectomy with fusion ("ACDF") at the Syracuse Veterans Administration Medical Center ("SVAMC"), in Syracuse, New York.
The Court held a bench trial from April 12, 2010, through April 14, 2010, and April 26, 2010.
At the conclusion of trial, Defendant moved pursuant to Rule 52(c) of the Federal Rules of Civil Procedure for a judgment on partial findings, arguing that Plaintiff had failed to establish negligence and causation. The Court reserved decision on the motion and directed the parties to file proposed findings of fact and conclusions of law no later than forty-five days after receiving the trial transcript.
Having reviewed the parties' post-trial submissions as well as the trial transcript, the Court denies the Rule 52(c) motion and makes the following findings of fact and conclusions of law.
1. On November 4, 2004, Plaintiff underwent an ACDF at the SVAMC to remove a degenerative disc and osteophytes causing an impingement at C5-C6.
2. An ACDF is a surgical procedure performed to remove a herniated or degenerative disc in the cervical (neck) spine. The goal of this procedure is to remove the herniated or degenerative disc, in addition to any other matter that might be pushing on the nerve roots or spinal cord, such as a bone spur or ligament, and then to replace the herniated or degenerative disc with a bone graft.
3. Discectomy literally means "cutting out the disc." A discectomy can be performed anywhere along the spine from the neck (cervical) to the lower back (lumbar). The surgeon reaches the damaged disc from the front (anterior) of the spine through the throat area. The surgeon accesses the disc and bony vertebrae by moving aside the neck muscles, trachea, and esophagus.
4. With the aid of a fluoroscope (commonly referred to as a "C-arm")—a form of x-ray—the surgeon passes a thin needle into the disc to locate the affected vertebra and disc.
5. To remove the damaged disc, the vertebrae above and below the disc must be held apart using some form of distraction. While there was a dispute among the experts as to the appropriateness of the distraction used in the present case, they in general did agree that there were various methods of achieving distraction when performing an ACDF. One such method involves using an instrument, referred to as a "distractor," such as a "disc space distractor." This method involves insertion of the instrument between the vertebrae to push the bone apart so as to achieve space or openness which is needed in order to remove the damaged disc and any material impinging on the nerve roots or spinal cord and to insert the graft. Another method of achieving distraction is referred to as "cervical distraction." That is accomplished by pulling on the head and neck in such a way, either manually or by some pulley system, so as to achieve the appropriate space or openness.
Once distraction is achieved, the outer wall of the disc (annulus) is cut; and the surgeon removes the damaged disc using small grasping tools. The surgeon must also remove the posterior longitudinal ligament ("PLL"), which runs behind the vertebrae, to reach the spinal canal. The surgeon then removes the disc material
6. Once the surgeon removes the damaged disc and any remaining bone spurs and PLL, the surgeon fills the open disc space with a bone graft. The graft serves as a bridge between the two vertebrae to create a spinal fusion. The bone graft and vertebrae are often immobilized and held together with metal plates and screws. Prior to closing the incision, an x-ray is taken to verify the position of the bone graft and the metal plate and screws.
7. Prior to surgery, Plaintiff suffered from symptoms primarily in his left arm, including weakness, numbness and tingling. See Dkt. No. 76 at 11. He did not, however, demonstrate symptoms associated with spinal-cord compression (myelopathy
8. An x-ray and an MRI taken on March 25, 2004, indicated that there was a mild narrowing of the disc space at C4-C5. Plaintiff was diagnosed as having some impingement on the spinal canal at the C4-C5, C5-C6, and C6-C7 levels, with the most severe impingement at the C5-C6 level, causing a narrowing of the spinal canal (spinal stenosis). See Dkt. No. 75 at 21. There was mild disc-space narrowing and grade one retrolisthesis at the C5-C6 level (meaning that the C5 vertebral body was a little farther back in relation to the C6 vertebral body). See id. at 13. Also, at the C5-C6 level, there appeared to be a mild spondylitic osteophyte eccentric to the left. See id. at 14.
9. Prior to surgery, there was no evidence of spinal-cord edema.
10. On November 4, 2004, Plaintiff was brought into the operating room and placed on the table in the supine position. See Dkt. No. 74 at 83. He was then placed under general anesthesia and intubated. See Joint Trial Exhibit "B" at 1086.
11. Thereafter, Plaintiff's chin was placed in a chin strap and a ten-pound weight was attached to provide cervical traction. See id.; see also Dkt. No. 74 at 83-84.
12. At 11:38 a.m., the first incision was made. See Joint Trial Exhibit "B" at 1086.
13. Prior to entering the C5-C6 disc space, a fluoroscopic image was taken. The image indicated that the needle was actually at the C6-C7 disc space; and, therefore, the needle was moved to the appropriate space and another image was taken to verify its placement. See id.
14. A drill was used to clean out the disc space, and osteophytic ridges on both the inferior border of C5 and superior border of C6 were drilled down. See id. at 1087.
15. An upbiting curette was then used to remove the PLL and the disc material from the osteophytic ridges. See id. A Kerrison rongeur was then inserted, and the osteophytic ridges on both the inferior and superior end plates were taken down in either direction. See id. A Kerrison rongeur was then used to remove any material from the foramen and to further trim down the anterior aspect of the vertebral
16. A Cornerstone template was used to check for the proper sizing of the bone graft, and a 5-mm medium sized graft was selected. See id.
17. At some point between 13:05 and 13:15, the graft was worked into place by tamping with a "tampon mallet." Plate and screws were inserted to secure the graft. See id. at 1087. Around this time, Plaintiff's blood pressure, both the systolic and diastolic, dropped about 15 millimeters. See id. at 1091.
18. Prior to closing, another fluoroscopic image was taken to verify that the graft, plate and screws were properly placed. See id. at 1087, 1091.
19. A surgical note stated that "the surgical procedure was itself uneventful except for some bulging of the dural tube noted while performing the decompression." See Dkt. No. 84 at 27.
20. When Plaintiff came out of anesthesia, he complained that he was experiencing weakness in his legs. See Dkt. No. 74 at 72. Dr. Krishnamurthy directed that an x-ray be taken to look at the position of the graft. He also directed that an MRI scan be taken and further prescribed that Solu-Medrol, a steroid that can reduce inflammation in the spinal cord, be administered. See id. at 95; Joint Trial Exhibit "B" at 986-87.
21. The x-ray and MRI showed that Plaintiff suffered from mild cord impingement at C4-C5, C5-C6, and C6-C7, with extensive edema in the spinal cord. See Dkt. No. 74 at 65-66.
22. Plaintiff was diagnosed with "incomplete quadriplegia." See Dkt. No. 63 at ¶ 18; Dkt. No. 66 at 4.
To establish liability in a medical malpractice action, a plaintiff must prove by a preponderance of the evidence that the defendant deviated from good and accepted standards of medical practice and that the departure was the proximate cause of the injury. See Prestia v. Mathur, 293 A.D.2d 729, 730, 742 N.Y.S.2d 80 (2d Dep't 2002) (citations omitted). "Where . . . conflicting expert testimony is presented, the [fact finder] is entitled to accept one expert's opinion, and reject that of another expert[.]" Ross v. Mandeville, 45 A.D.3d 755, 757, 846 N.Y.S.2d 276 (2d Dep't 2007) (citations omitted).
As stated, the Court heard testimony from Dr. Krishnamurthy who, while not able to recall the details of Plaintiff's operation, referred to the surgical notes and testified to his usual procedure. First, Dr. Krishnamurthy noted that he did not generally use distractors for this procedure but, instead, used cervical traction to provide the necessary distraction. See Dkt. No. 74 at 17, 19-20. Although it was not recorded in the surgical notes, Dr. Krishnamurthy stated that it was his practice to use an intra-operative microscope during this procedure to increase visualization and that he had never performed an ACDF without the assistance of a microscope. See id. at 17-19, 80.
Dr. Krishnamurthy also offered several theories as to the cause of Plaintiff's injury. In Dr. Krishnamurthy's opinion, the likely cause of the edema shown on the post-operative MRI was the removal of the material causing Plaintiff's pre-surgical spinal-cord compression. See Dkt. No. 74 at 106-07. Dr. Krishnamurthy testified that the relief of the compression itself could cause swelling in the spinal cord because of the spinal cord's sensitivity to the procedure. See id. at 103-04.
When questioned about the entry in the surgical notes referring to a bulging of the dural tube, Dr. Krishnamurthy had no explanation but did opine that, among other things, such an occurrence was consistent with a contusion.
Dr. Cooney, the radiologist, testified that he reviewed both the pre- and post-operative MRIs and x-rays and prepared a report detailing his findings. See Joint Trial Exhibit "B." Referring to the report that he had prepared, Dr. Cooney testified that the post-surgery MRI and x-rays indicated that there was mild cord impingement at C4-C5, C5-C6, and C6-C7, with extensive edema in the cord, out of proportion to the degree of cord impingement. See Dkt. No. 75 at 27-28. Although not opining as an expert as to causation, Dr. Cooney noted in his report that "[t]his suggests that it may be due to a contusion of the cord or may represent edema in the cord related to a preexisting degree of compression that has since been relieved." See id. at 28.
Dr. Cooney testified that the edema was not present in the pre-operative images from March but commented that the edema's absence from those images did not preclude the fact that it could have manifested itself at some point between the March 25, 2004 MRI and the November 4, 2004 surgery. See id. at 31. Dr. Cooney admitted, however, that there was no clinical evidence to support the hypothesis that the edema was present before the November 4, 2004 surgery. See id. at 31. In the absence of pre-operative edema, Dr. Cooney opined that the two most likely causes for the post-operative edema were a contusion of the spinal cord occurring during
Defendant's expert, Dr. Dunn, testified that he had reviewed Plaintiff's case history, including his medical records, MRIs, x-rays, and deposition testimony. See Dkt. No. 76 at 11. While he testified that Dr. Krishnamurthy did not deviate from the accepted standard of care in the procedures he followed, he could not conclude "with a high degree of medical certainty what the cause was for the complication." See id. at 53.
Dr. Dunn opined that the most likely cause of Plaintiff's injury would be "some vascular compromise" on the "anterior spinal artery," causing ischemia.
Dr. Soriano, Plaintiff's expert, testified that he had reviewed Plaintiff's case history, medical records, diagnostic studies, including the pre- and post-operative MRIs and x-rays and deposition testimony. He then opined that Plaintiff's condition—"incomplete quadriplegia"—resulted from inadequate surgical care. See Dkt. No. 84 at 10. He testified that the swelling and edema which was displayed in Plaintiff's post-operative MRI and x-rays was consistent with a contusion of the spinal cord. Although Dr. Soriano agreed that such edema and swelling could be consistent with a preexisting degree of compression since relieved, "decompression," as Dr. Cooney suggested, he opined that Plaintiff's preexisting compression was not severe enough to cause the edema. See id. at 41.
Dr. Soriano testified that this is further borne out by the surgical note which stated that "the surgical procedure itself was uneventful except for some bulging of the dural tube noted while performing the decompression." See id. at 27. Dr. Soriano opined that a bulging of the dura can be caused by one of two things: either a swelling of the spinal cord from damage of some kind or an incomplete removal (decompression) of material, such as a bone spur or PLL, that is pushing on the spinal cord and its covering. See id. at 27-28.
Dr. Soriano referred to his review of the post-operative x-ray and MRI and opined that they indicated that there was still impingement at C5-C6 which would mean that not all the bone spurs and/or PLL were removed.
Dr. Soriano testified that, in his opinion, Dr. Krishnamurthy's failure to use an appropriate
Dr. Soriano testified that, in his opinion, Dr. Krishnamurthy's failure to provide sufficient distraction prevented him from removing the bone spurs and PLL completely, which were already causing some compression of the spine. Furthermore, the insufficient distraction then required Dr. Krishnamurthy to tamp the graft into place, causing Plaintiff's injury. That, in his opinion was a deviation from the accepted standards of care. See id. at 31-33.
The Court finds that Dr. Soriano provided the most credible analysis regarding the likely cause of Plaintiff's injury. Although both Dr. Cooney and Dr. Dunn hypothesized that Plaintiff's injury "could" have resulted from vascular insufficiency/compromise during the surgery, there was no evidence to support that theory. Even Dr. Krishnamurthy discounted this theory, noting that, because Plaintiff's blood pressure remained relatively normal throughout the procedure, a vascular insufficiency was not the cause of Plaintiff's injury. See Dkt. No. 74 at 107.
With respect to the theory that a pre-existing compression caused Plaintiff's injury, Dr. Dunn, Dr. Cooney, and Dr. Soriano all testified that Plaintiff exhibited no clinical signs of severe spinal cord compression prior to the surgery. See Dkt. No. 76 at 81; Dkt. No. 75 at 54; Dkt. No. 84 at 41. Dr. Soriano testified that, if the spinal cord was already compressed by ninety percent, such an edema could be
In addition, a medical malpractice patient may rely on the doctrine of res ipsa loquitur.
Simmons v. Neuman, 50 A.D.3d 666, 667, 855 N.Y.S.2d 189 (2d Dep't 2008) (citations omitted); see also States v. Lourdes Hosp., 100 N.Y.2d 208, 211-12, 762 N.Y.S.2d 1, 792 N.E.2d 151 (2003) (citations omitted).
"[T]he doctrine concerns circumstantial evidence which allows, but does not require, the fact finder to infer that the defendant was negligent[.]" Simmons, 50 A.D.3d at 667, 855 N.Y.S.2d 189 (citation omitted). As such, a plaintiff need not eliminate all other possible causes of his or her injury but only reduce those causes such "`that the greater probability lies at defendant's door.'" Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 495, 655 N.Y.S.2d 844, 678 N.E.2d 456 (1997) (quotation omitted).
In the present matter, Plaintiff is entitled to rely on res ipsa loquitur. Based on all of the credible testimony, the Court finds that it is highly unlikely that Plaintiff's injury was caused by a vascular insufficiency (ischemia) or by the removal of the compression itself. The preponderance of the credible evidence supports the proposition that Plaintiff's injury was caused by Dr. Krishnamurthy providing an insufficient amount of distraction, which caused the bone graft and/or the bone spurs and PLL to come into contact with Plaintiff's spinal cord when the bone graft was tamped into place. Such contact would cause the contusion and result in the edema that was present post-operatively.
After reviewing the trial transcript and the parties' post-trial submissions, and the applicable law, and for the above-stated reasons, the Court hereby
The anaesthesiologist who participated in Plaintiff's surgery was not called to testify at trial to verify this claim.
