In June 2004, we wrote:
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: 173-78).
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.
Jay Kelley writes us:
I was just forwarded a copy of the “overlawyered” post from 2004 regarding Josh Terry’s case. As you astutely concluded the coverage you were basing your weblog on was cursory at best. I suspect you would agree those at the trial are in a far better position to judge then an individual who read a newspaper article. The post includes multiple comments implying the case in some regards may have lacked merit. I can assure you there was merit. The claim was not based on “wishful” inference, but medical records and sworn testimony from the OR. The issue in the case was not if paralysis is an accepted complication. The issue involved instrument positioning. Had the Physician applied pressure lateral to the cord instead of medial the injury could not have occurred. All experts including the defense witness acknowledged this practice is standard and would eliminate the risk of spinal injury.
I welcome monitoring and overseeing of the justice system, but grow concerned when headlines and piecemeal information is used to create uncertainty or distrust in the system. Dr. Lindell remains in active practice in Ill.Best regards
Jay Kelley
We wrote Dr. Stephen A. Skiver, the attorney for Dr. Lindell, to get his take, but his e-mail bounced. Readers can judge for themselves whether our original account was fair. And we do disagree with the proposition that trial results or legal outcomes are beyond the criticism of those who did not attend the trial.
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