In the complicated surgery to correct scoliosis, screws and rods are inserted and bone added into the spine. The risk of nerve damage or paralysis is such that there is something called the Stagnara wake up test, whereby the patient is woken during surgery to ensure she can move her feet. In 1999, however, Joshua Terry was one of the unfortunate 0.1% who was paralyzed during surgery. And, according to the newspaper account, his lawyer, Jay Kelley, found four surgeons to testify against defendant Dr. Ernest Lindell that “paralysis was not a potential complication” from surgery on the spine to correct scoliosis. A Lucas County, Ohio jury awarded $8.4 million to Mr. Terry and another million to his parents. And Dr. Lindell will no longer perform spinal surgery. (“Paralyzed area man wins $10M judgment”, Toledo Blade, Jun. 16; P. Stagnara, et al., “Functional monitoring of spinal cord activity during spinal surgery”, Clin. Orthop., 1973; 93: 173?8).

Perhaps there was malpractice in this case; paralysis is relatively rare, and one can’t tell the merits one way or the other from cursory press coverage. (Terry claims that Lindell “lost control” of an instrument during surgery, and it’s unclear whether that claim is the result of concrete evidence or a wishful inference.)

If the press account is correct, the plaintiffs’ attorney put a finger on the scale through expert testimony claiming that paralysis doesn’t happen except through negligence. Even a relatively well-educated lay jury isn’t well situated to resolve which expert is telling the truth. It’s another example of why the current litigation system is poorly situated to resolve disputes of this sort.

Filed under: medical, Ohio