Jury Awards Nearly $1 Million to Ohio Man Left Incontinent After Spinal Surgery

Published August 11, 2010 · Verdicts & Settlements

A 36-year-old husband and father went into surgery to have a fluid-filled mass removed from the base of his spine. He came out of it having lost control of his bowels and bladder and all sexual function, permanently. Last month, according to court records from the Summit County Court of Common Pleas, a jury decided that his neurosurgeon's failure to follow basic surgical standards caused those injuries and returned a verdict of $995,428 in the family's favor.

Our office did not handle this case. I am writing about it because it shows, better than any statute can, how a surgical-negligence case is actually won in an Ohio courtroom, and what a jury is willing to do when the proof is there.

What happened to the patient

The court records describe a man who, before the surgery, had normal sensation and normal bowel, bladder and sexual function. He was married with a two-year-old daughter. After abdominal pain and some trouble with urination, a scan revealed a grapefruit-sized mass near his tailbone. He was referred to a neurosurgeon, who sent him to a general surgeon to discuss removing the cyst laparoscopically.

The two surgeons disagreed at trial about exactly what the cyst was, but nobody disputed two things: the injuries were permanent, and they were caused by the surgery. The only real fight was whether the neurosurgeon's conduct fell below the standard of care.

The three failures the jury heard about

The family's neurosurgery expert testified that the neurosurgeon violated the standard of care in three ways:

1. He did not scrub in. The neurosurgeon testified that he did not scrub in because it was unnecessary, and that he entered the operating room several times to consult with the general surgeon. The family's expert put it bluntly: the neurosurgeon agreed to operate, but never actually did.
2. He did not use magnification. A microscope or magnifying "loupes" help a surgeon see and avoid the nerves at the end of the spinal cord.
3. He did not use nerve monitoring or nerve stimulation. These tools help locate nerves during the procedure so they are not cut or damaged.

The expert testified that these failures caused the injuries. The jury agreed. The general surgeon had settled with the family before trial, so the verdict was returned against the neurosurgeon alone.

Why this verdict matters for injured patients

A surgeon's own judgment is not the standard of care

The defense here was essentially that the neurosurgeon decided scrubbing in was not necessary. Juries are allowed to reject that. The standard of care is what a reasonably careful neurosurgeon would do in the same situation, as explained by qualified experts, not what this particular surgeon felt like doing that day. When an expert can explain to twelve ordinary people why a step matters and why skipping it hurts the patient, "I didn't think it was needed" is not a defense.

Permanent loss of function drives value

The verdict here was not driven by medical bills alone. A man in his thirties who will never again control his own bowels or bladder, and who has lost sexual function in the early years of his marriage, has suffered a loss that a jury can measure in the hundreds of thousands of dollars even before the economic damages are counted. In Ohio these are "noneconomic" damages, and the law caps them in most injury cases, but the cap does not apply to the most catastrophic categories of permanent injury. Which side of that line a case falls on is one of the first things I evaluate.

Expert testimony is the whole case

A malpractice case in Ohio cannot be filed, much less won, without a qualified expert willing to say under oath that the defendant fell below the standard of care and that the failure caused the harm. Here the family's expert was a neurosurgeon who could walk the jury through exactly what should have happened in that operating room. Finding and preparing that witness is the single largest piece of work in a surgical-negligence case, and it starts long before suit is filed.

The hidden penalty for insurers who refuse to negotiate

One more feature of Ohio law is worth knowing about when you read about a verdict like this one. R.C. 1343.03(C) allows a plaintiff who wins a money judgment in a tort case to ask the court for "prejudgment interest." If the court finds that the losing party failed to make a good-faith effort to settle, and the winning party did not fail in the same way, interest runs on the judgment from an earlier date, which can add a significant sum to what the defense owes.

The point of the statute is simple. A defendant or its insurer should not be allowed to stonewall for years, force a family through trial, and pay no price for it when the jury proves the stonewalling was a mistake. When a case has permanent injuries and causation is not seriously disputed, a defense that refuses to put a reasonable number on the table is taking a risk, and a plaintiff's lawyer should be ready to make the defense pay for it.

What this means for you

If you or a family member came out of surgery with an injury nobody warned you about, a few things follow from this case:

• Permanent nerve damage after surgery is not automatically "a known risk." It may be, or it may be the product of a skipped step. Only a review of the operative records by a qualified expert can tell the difference.
• The deadline for medical claims in Ohio is short. Medical-negligence claims are generally subject to a one-year limitations period, far shorter than the two-year deadline that applies to most injury claims. Waiting to "see how recovery goes" can cost you the claim.
• Keep every record. Pre-surgery imaging, the consent forms, the operative report, and the names of everyone in the room all matter. So do your medical bills, which Ohio juries are allowed to evaluate in a particular way, as I explained in my post on billed versus paid medical expenses.
• Settling with one defendant does not end the case against another. This family resolved its claim against the general surgeon and still took the neurosurgeon to verdict.