A 43-year-old woman began experiencing pain and stiffness in her neck and tingling in her fingers. Her family physician first prescribed physical therapy, which failed to produce any lasting relief. The woman’s family physician referred her to a surgical center for pain management. Following a brief effort to treat her condition with medication, a physician at the surgical center gave the woman a cervical epidural steroid injection (CESI), which provided her with six to seven months of relief.
Ten months later the woman returned to the surgical center for a second CESI. The procedure was performed by a different physician. Unlike the first CESI, the second was performed under general anesthesia. Following the procedure, the physician performed a neurological exam of the woman and found decreased strength and sensation in her right arm.
A month later, the second physician gave the woman another CESI, again under general anesthesia. The woman was advised that the risks associated with the procedure included nerve damage, which was described as “very rare.” When she awoke from the third CESI, she complained of slurred speech and pain in her right arm and armpit. She also experienced difficulty opening her right eye. The second physician assured her that her symptoms were due to the anesthesia and would wear off.
That night the woman experienced pain in her neck, right arm, and fingers, which continued into the next morning. She called the surgical center, and a nurse again assured her that her symptoms were caused by the anesthesia and would wear off. By the afternoon she called the second doctor complaining of cramping and numbness in her right arm, drooping of her right eyelid, and slurred speech. The second doctor advised her to go to the hospital emergency room (ER) for evaluation and an MRI examination.
That evening the woman went to the ER where she was seen by a neurologist, who performed a diagnostic examination and ordered a battery of tests. The tests included MRIs of her brain and spine, as well as a lumbar puncture. The neurologist concluded that the woman’s symptoms were caused by a malperformed epidural injection and admitted her to the hospital for treatment. The woman remained in the hospital for five days and was treated with pain medication and intravenous steroids to reduce the inflammation to her spinal cord.
After her discharge from the hospital, woman was treated by the neurologist and by her family physician and did not work for three months while she received physical therapy. Since that time the neurologist prescribed various medications in an effort to address the woman’s chronic pain without success. The woman also continued to have neurological deficits including proprioceptive sensory loss, clumsiness, coordination issues, impaired balance, dizziness, lethargy, confusion, and depression.
The woman sued the doctor who performed the CESI procedures under general anesthesia for medical malpractice. During trial the woman presented testimony from an expert who opined that doctor deviated from accepted standards of care by, among other things, piercing the spinal cord with the epidural needle and injecting the steroid directly into the cord, thereby permanently injuring the woman.
During the doctor’s expert’s deposition, the expert testified that the doctor did not deviate from accepted standards of care in undertaking the CESI and that while the needle pierced the outer membrane covering the woman’s spinal cord, the needle did not pierce the membrane and proceed into the cord itself. If the needle had pierced into the spinal cord and an injection had taken place, the doctor would have seen some intrathecal spread of the contrast material and would have felt considerable resistance to the injection due to the firmness of the spinal cord, both of which would have indicated that the needle was in the wrong place.
The doctor’s second expert stated in a written report that during the third CESI the doctor injected the woman’s spinal cord, which would explain why the MRI of her spine performed the next day demonstrated an area of increased signal extending from her C5 vertebra through her T1vertebra.
At trial the doctor’s first expert testified that he had no opinion, one way or another, whether the needle wielded by the doctor had actually pierced into the woman’s spinal cord, but even if it had, the doctor did not deviate from the standard of care. On cross-examination by the woman’s counsel regarding his deposition testimony, the expert said a doctor may or may not feel resistance upon injection of dye into the spinal cord.
At trial, the doctor’s second expert responded on cross-examination that he thought the doctor injected the woman’s spinal cord, but that he was not an expert in the use of CESI. He also testified that another mechanism could have resulted in the MRI findings. He stated that he had an opinion “before he read the opinion of an expert in the field.” The woman’s counsel objected on the grounds that the expert could not rely upon another expert to modify his opinion where the other expert’s report was not in evidence. The Superior Court of New Jersey, Law Division, Bergen County, sustained the objection.
The trial court entered judgment in accordance with a jury verdict of no cause of action. The jury found that the doctor did not deviate from the accepted standards of medical care. The woman moved for a judgment notwithstanding the verdict (JNOV), or, alternatively, for a new trial, arguing that defense experts had improperly, and without notice, changed their opinions at trial and that defense counsel’s repeated misconduct resulted in unfair prejudice. The trial court denied the motion.
The Superior Court of New Jersey, Appellate Division, affirmed. The court held that the trial court did not err in denying the woman’s motion for a new trial and the record did not support the woman’s assertion that the doctor’s counsel knew that the doctor’s second expert would change his testimony regarding whether the doctor pierced the spinal cord with the epidural needle
The trial court did not err in denying the woman’s motion for a new trial. The court found there was ample evidence in the record for reasonable minds to conclude that the doctor did not deviate from the standard of care. The doctor’s first expert testified on direct examination that even if he assumed the doctor had pierced the spinal cord with the epidural needle, that fact alone would not demonstrate a departure from the standard of care because piercing the spinal cord was a risk of the procedure even when executed as carefully as possible. The court found there was sufficient evidence supporting the jury’s conclusion that the doctor did not deviate from the standard of care.
The record did not support the woman’s assertion that the doctor’s counsel knew that the doctor’s second expert would change his testimony regarding whether the doctor pierced the spinal cord with the epidural needle. The court noted that during an in camera discussion prior to the doctor’s second expert’s testimony, the doctor’s counsel stated that the expert would say that in his initial opinion the doctor had pierced the spinal cord. The second expert did say that on direct examination. It was not surprising to the woman that the doctor’s experts would opine that even if the doctor had pierced the spinal cord, he still did not breach the standard of care and that that act did not cause the damages the woman alleged in her complaint.
The Superior Court of New Jersey, Appellate Division, affirmed the trial court’s denial of the woman’s motion for a judgment notwithstanding the verdict (JNOV), or, alternatively, for a new trial.
See: Diane Corter and William John Corter, Jr., Her Husband, Plaintiffs-Appellants, v. Joseph Ghahhari, M.D., Defendant-Respondent, and Advanced Interventional Pain Management, LLC, Noemy Aronovici Rubinchik, M.D., And Wayne Surgical Center, LLC. Defendants., 2016 WL 4937883 (N.J.Super.A.D., September 16, 2016) (not designated for publication).
See also Medical Law Perspectives, October 2014 Report: Backaches and Court Battles: When Chronic Back Pain Leads to Litigation
See the Medical Law Perspectives November 4, 2014, Blog: New Back Pain Treatment Options Offer Hope, Require Caution