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Neurosurgeon potentially negligent in surgeon switch

Advances in technology and techniques in medicine have helped save lives and minimize suffering of patients but often require specialized training for the practitioners. Medical malpractice cases frequently involve the applicable standard of care for the techniques and whether physicians have properly utilized the new technology or operation.

Grapefruit-sized mass discovered

The patient in the Moretz v. Muakkassa case went to the emergency room for pain in his lower back, and the physician discovered a large mass in his pelvis. When the patient followed up with his own doctor, he was referred to a board-certified neurosurgeon, the defendant, who diagnosed a cyst located at the end of the spinal cord. The type of cyst found was an anterior cyst, positioned where it was growing from back to front, which is rare.

The neurosurgeon referred the patient to a general surgeon, who was qualified to perform laparoscopic surgery, a less invasive procedure, and also was qualified to open the patient's abdomen to expose the cyst, as a backup plan. The laparoscopic technique did not work, so the general surgeon went to the open surgery in order to move organs out of the way to expose the cyst.

Neurosurgeon did not "scrub in"

Once the cyst was exposed, the general surgeon performed the spinal cord surgery, while the neurosurgeon just came into the operating room from time to time and watched the procedure. The surgeon asked the neurosurgeon to "scrub in," but he declined and said the surgeon was doing fine.

Unfortunately, the surgery went wrong and as a result the patient suffered permanent loss of bowel, bladder and sexual function. The expectation by the patient and the general surgeon that the neurosurgeon would be the co-surgeon and handle the spine area for which he was certified was one of the theories of the case.

Experts testify to a better way

A neurosurgeon brought in to testify about the treatment of cysts attached to the spine said a neurosurgeon's expertise would be required for the patient's surgery. He said he would have used a different approach, going in from the back, and also would have used magnification and nerve stimulation to identify and protect any nerves that could be damaged.

The expert surgeon also gave his opinion that the defendant neurosurgeon breached the standard of care by not instructing the general surgeon to use magnification and nerve stimulation in the operation, and by not scrubbing in to assist him. He said that the surgeon had probably cut nerves in or around the cyst, resulting in the injuries.

Book illustration brought in to show cyst

During cross-examination, the patient's attorney showed the defendant doctor and his expert a picture from a book about spinal surgery which showed a type of cyst similar to the patient's. In the testimony about types of cysts and their proper treatment, the experts said that there could be nerves in the patient's cyst, which the defendant denied.

The defendant objected to the illustration being used as an exhibit in the case; it could only be used in conjunction with expert testimony to explain it under the Ohio Evidence Rules. The court held that medical illustrations were subject to the rule and that the defendant was prejudiced by the admission, since the jury was allowed to interpret the picture on its own.

Sorting out the causation and responsibility for a serious surgical injury is a complex job requiring not only expert evidence, but also experienced and specialized legal representation. Contacting an attorney is essential in holding the proper parties accountable.