PATIENT, 68 years old at the time, sustained a fall from a lower rung of a ladder while putting up Christmas lights at his house.  He was taken to Kaiser Walnut Creek by his wife and examined in the emergency room.  X-rays were taken which showed “minimal wedging at T-11,” but the report indicated “no definite acute fracture.”  Patient and wife were told that he had sustained a deep tissue injury to his back.

 

As his condition deteriorated, he was seen by his Kaiser primary care physician, Dr. Ross Armstrong, on December 16, 2002.  His chief complaints were extreme pain in his back, a lump sticking out of his thoracic spine, and deep purple bruising throughout his back.  Dr. Armstrong told them that PATIENT had sustained only a soft tissue injury.

 

On December 26, 2002, at the request of Dr. Armstrong, follow-up x-rays were taken.  The report prepared by Dr. Martin Portnoff indicated that there were findings of ankylosing spondylitis which were unrelated to the fall, but no mention of fractures, a reading which everyone now knows to have been wrong.  The x-rays actually revealed a significant displacement of T-10 over T-11.  This negligent reading of the x-ray by Kaiser set in motion the wrong course of treatment for Patient.

 

On numerous occasions, the Patient and wife requested of Dr. Armstrong referrals to an orthopedist and that an MRI or CT scan be taken to see if something else was wrong.  Dr. Armstrong repeatedly denied the requests for further diagnostic studies and referral to a specialist.  Dr. Armstrong did refer Patient for physical therapy beginning on January 13, 2003, despite his continuing pain, the development of a decubitus ulcer at the thoracic fracture site, and a diminishing general health condition.  This was the wrong course of treatment.  As for the decubitus ulcer, Dr. Armstrong told the Patient and his wife that the skin breakdown was caused by fluid build up and calcification from the soft tissue injury.  There was no basis for Dr. Armstrong’s misrepresentation, and in fact the skin breakdown was caused by the displacement of the vertebra. When the Patient and wife pressed Dr. Armstrong for a second opinion, Dr. Armstrong finally referred Patient to Dr. Robert Wiskocil, a rheumatologist.  This referral was to the wrong specialist.  As time passed, Patient was taking more and more pain pills to mask the pain and was becoming kyphotic (hunched over) and more incapacitated.

 

On February 25, 2003, over one month after the referral, the Patient was finally seen by Dr. Wiskocil.   Dr. Wiskocil told the Patient and wife that Patient had ankylosing spondolitis and that surgery and orthopedics were not an option.  Dr. Wiskocil then did an impression of Ed Sullivan with a  hunched over back and told Patient that this was what he would eventually look like.  According to Dr. Wiskocil, Patient was “shit out of luck” because nothing could be done for his back pain.  Although no mention of the fracture was made to the Patient or wife, Dr. Wiskocil’s notes indicate that he was aware of the compression fracture and a 30 degree angulation of T-11.  When the Patient persisted in asking for help with his condition, Dr. Wiskocil finally agreed to refer Patient to the Kaiser Spine Clinic in Martinez to be fitted with a back brace.  His notes indicate that “surgery would be a last choice.”  However, by that point in time, significant damage was being done because of the unstable fracture and surgery was the first and only option.

 

As time passed, Patient was taking more and more pain pills and his condition was deteriorating.  He was using a cane to walk, and was starting to experience trouble breathing.  All of these conditions were brought to Dr. Armstrong’s attention and met with resistance for referral to the appropriate medical specialist(s). 

 

On March 26, 2003, Patient finally saw Dr. Gordon Weiss, an orthopedist at the Kaiser Martinez Spine Clinic. Dr. Weiss noted a prominence of the spine in the mid thoracic spine with overlying erythema, but no neurological symptoms that day.   Patient had increased kyphosus with difficulty standing straight and shortness of breath.  Dr. Weiss’s review of the December x-rays noted a T-11 anterior wedge fracture with an approximately 50% decrease in disc height and an anterolisthesis of the T-10 vertebral body of approximately 1.5 cm. 

 

X-rays were taken that day by Dr. Lehtola who reported that the vertebrae above was compressed ventrally by at least 2.5 cm. and may be offset to one side.  Dr. Lehtola recommended either a CT or MRI imaging to better define the anatomy.  Further, Dr. Lehtola noted that this deformity and offset were not reported in the December 2002 film reports taken in Walnut Creek.  This was the first time that the Patient ans his wife were told that Patient had fractured his back in the fall three and one-half months earlier.

 

Dr. Weiss ordered a CT scan for further evaluation of the spinal fracture and pulmonary function tests to measure lung capacity.  In typical Kaiser fashion, the CT scan was not timely scheduled; it was only until AFTER Patient became paraplegic that the Patient and wife were notified that an appointment for the CT scan was available.

 

On April 7, 2003, Patient experienced severe back spasms and pain, and collapsed at home.  He was taken by ambulance to Kaiser Walnut Creek.  The emergency room doctor immediately transferred him to Kaiser Oakland for an emergency CT scan.  When the Patient arrived at Oakland by ambulance, they were nearly turned away by the Oakland staff because the Walnut Creek staff had not called ahead to Oakland to give orders for his care.

 

On April 8, 2003, Patient was seen by Dr. Baines, an orthopedic surgeon, who finally scheduled an MRI.  Because Dr. Baines was not going to be available to follow his patient,  he turned the case over to Dr. Walter Burnham, another orthopedic surgeon.

 

Dr. Burnham also ordered an MRI to check for possible spinal cord impingement; however,  Kaiser Oakland only has an old style MRI machine (tube style) which was too small to fit Patient. Instead of sending Patient to an outside MRI facility, no MRI was ever taken by Kaiser.  The CT scan could not show the same detail of spinal cord impingement as would an MRI, a fact which later turned out to be critical during Patient three surgeries.

 

After reviewing the CT scan, Dr. Burnham immediately scheduled Patient for spine surgery. The pre-surgery examination found Patient in excruciating pain, with only 60% lung capacity, but neurologically intact. 

 

On April 11, 2003, Dr. Burnham attempted a closed reduction of the fracture. However, the fracture did not move.  In Dr. Burnham’s opinion, this was not surprising because the fracture was four months old.  He also noted that Patient had a significant displacement and prominence as well as thinning of the skin and subcutaneous hematoma consistent with fracture displacement..  Screws and rods were placed from T-6 to L-3 and he performed a dorsal resection of the fracture dislocation.  Then a translational reduction maneuver was attempted without significant success.  The fracture only moved slightly.  Additional force was used to enhance the reduction.  When Patient awoke, he was still neurologically intact.

 

A follow-up CT scan showed a large anterior column void suggesting a need for interbody structural grafting due to the high risk of failure and instability to the spinal column.  The second operation took place on April 17, 2003.  Going through the chest, the 9^th rib was removed and the anterior surface of the spine was exposed.  There was a large void anteriorly which was resected from T-10 to T-12.

 

During surgery and the placement of the interbody structural titanium mesh cage, the somatosensory evoked potentials were lost. Kaiser was using an outside provider, Evoked Potentials, for surgical neuro monitoring, a fact never disclosed to the Patient.  The loss of the transcranial motor evoked potentials for 1 to 2 hours was not communicated to the surgeon, Dr. Burnham.  Patient awoke paralyzed in his legs.

 

In Dr. Burnham’s post surgical report, he wrote that he  “demonstrated my dismay at this lack of communication.”  Patient was awakened and he was able to move his arms but not his legs.  Dr. Burnham  then performed a complete decompression and installed the interbody cage.  Although Dr. Burnham placed great blame for the paralysis upon the loss of the neuro monitoring, the Patient’s experts maintain there were still other causes of the paralysis, as discussed below.

 

A post-surgery CT myelogram was obtained which showed a circumferential blockage at T-11.  A third surgery was immediately performed for a posterior decompression.  In Dr. Burnham’s opinion, this gave Patient the best chance for recovery. The lamina and spinous processes were removed from T-9 to T-11, but to no avail.  Unfortunately, Patient has never regained the use of his legs.

 

He is considered a T-6 paraplegic with loss of bladder and bowel control.  He requires urinary catheterization every four hours.  Often, he can only move his bowels with digital stimulation.  He requires 24 hour care which is primarily provided by his wife, except for a few hours of home care 4-5 days per week provided at their own expense by an outside provider.

 

After the surgery, Patient was eventually transferred to Kaiser Vallejo for rehabilitation.  He remained there for nearly three months, returning home in early July, 2003.  From the time he returned home to today, life has been very difficult for both Patient and wife in terms of home care, lack of therapy, and lack of financial resources.  At times it has been psychologically unbearable for both of them.    To make matters worse, Kaiser has demonstrated time and time again an inability to provide medical care and rehabilitation to meet the standard of care required for a paraplegic.

         

            At first, home therapy was provided, but then decreased over time.  Patient’s wife has been advised by Kaiser therapists that without continuing therapy he will lose what little mobility he has. Kaiser has refused to provide the necessary rehabilitation equipment and home care equipment that would assist with activities of daily living.  Claimants’ rehabilitation expert will testify that the level of care rendered by Kaiser in terms of the paraplegic needs of Patient has fallen below the standard of care.  Efforts to get Kaiser to meet those needs have received a response from defense legal counsel that the Patient’s are “trying to self-direct his medical treatment and is being overly demanding.” 

 

Some recent examples of how Kaiser has failed to meet the standard of care for treatment are set forth in two letters from the Patient’s attorney, to defense counsel dated November 5, 2004 and November 9, 2004.  A reply was received from defense attorney dated November 10, 2004, addressing the issues in general, but not refuting the validity of the Patient’s claims.  All three letters are attached; however, for simplicity sake, some recent examples are:

1)         Patient developed a chronic decubitus ulcer which was never properly treated until intervention was made by an outside rehabilitation specialist, Dr. Alex Barchuk of Kentfield Rehab. The ulcer was so deep that it extended to the bone and had an odor of rotten flesh.  Kaiser was contemplating surgery; however, after Dr. Barchuk’s intervention and much prodding by the family, Patient is now on a wound vac and the pressure sore is starting to heal. Claimants’ expert will testify that the little care that was given for treating the sores was incorrect and has made the condition worse.

 

2)         The Kaiser wound clinic removed the wound vac but had no supplies to put it back on.  The visiting home nurse forgot to reorder supplies.

 

3)         Pain management has been spotty, inconsistent, and inappropriate.  Patient experiences significant, sometimes  excruciating, pain in his groin.  Kaiser’s answer has been to prescribe methadone and then oxycontin, both of which greatly affected Patient’s cognitive abilities.  After Dr. Barchuk’s intervention, Patient is now on a Fentinol patch and has regained his cognitive abilities.

 

4)         A bone density scan was recommended by Dr. Barchuk and ordered by Dr. Korn, the present Kaiser primary care physician, but was cancelled by the Kaiser Martinez facility because they had no way to transfer Patient onto the table.  After intervention by defense counsel, the bone scan was rescheduled, but Kaiser still could not get Patient onto the table.  The scan was never taken.

 

5)         Medical equipment related to the paraplegia necessary for Patient’s rehabilitation and health maintenance has been prescribed by Kaiser doctors, but has been denied by Kaiser.

 

6)         Pool therapy was prescribed, but it took forever to get approval for six therapy appointments.  It then took forever to get six more therapy appointments approved.  A long lag between groups of sessions existed because of the delay in approval.

 

Life has become a living hell for the Patient and Kaiser has done little, if anything, to help them.  Kaiser did provide a $40,000.00 advance to them shortly after Patient came home, but this was quickly used up in converting their van to accommodate a wheelchair and for some home care which has been paid by the Patient and wife out of their own pocket.  Patient requires 24 hour care and Patient’s wife has to provide most of  this care since the Patient and wife has used up their savings and have refinanced their home to pay for his care and related needs.

 

Claimants’ experts have identified eleven plus (11+) specific instances of negligence where Kaiser care fell below the standard of care.   They are as follows:

 

1)         Failure to recognize and diagnose from the December 11, 2002 and December 26, 2002 x-rays the T10-11 fracture - dislocation with a 2 cm anterior subluxation of T-10 on T-11.  These x-rays demonstrated a fracture - dislocation which was highly unstable (three-column spine) injury with a high risk for paraplegia if left untreated.  Dr. Dale Jung was the radiologist on December 11, 2002.  Dr. Mark Portnoff was the radiologist on December 26, 2002.

 

2)         Failure to account for the documented pre-existing history of ankylosing spondylitis in conjunction with the spinal injury.  The standard of care for a fracture - dislocation in a patient with ankylosing spondylitis is immediate hospitalization with bed rest and further diagnostic imaging studies (CT, myelo-CT, and MRI).  Treatment options would include surgical stabilization with posterior instrumentation or prolonged bed rest followed by rigid bracing. 

 

3)         Had the fracture - dislocation been properly diagnosed on December 26, 2002, a single posterior fusion surgical procedure would have been sufficient to stabilize the spine.  There is no reason to believe that the result would not have been successful.

 

4)         Because of the delay in diagnosis of the fracture-dislocation, the spine collapsed and angulated, resulting in spinal cord compression.  The surgical treatment became more complicated in that Patient required an additional anterior fusion surgery which resulted in the paraplegia.  Absent the delay in proper diagnosis, the anterior spine fusion would not have been necessary or required, and the paraplegia would not have resulted.

 

5)         Failure to recognize and diagnose the pre-existing history of ankylosing spondylitis as shown on the original December 11, 2002 x-rays.  This is important because even minor spine fractures in patients with ankylosing spondylitis are a cause for concern.  The films were of poor quality and should have been retaken - the cost was minimal.  A CT scan should have been taken at the time of initial injury.

 

6)         Dr. Ross Armstrong, the primary care physician, was negligent in his follow-up care in failing to make a proper diagnosis, failing to initiate correct treatment, prescribing physical therapy, failing to refer to appropriate spine specialist.

 

7)         Dr. Armstrong’s referral to Dr. Robert Wiskocil, a rheumatologist, was improper.  This referral was to the wrong specialist at the wrong time. 

 

8)         Dr. Armstrong repeatedly misrepresented to the Patient that the injury was only a soft tissue injury.  He failed to recognize the tissue breakdown at the thoracic fracture site as being caused by the dislocated vertebra.

 

9)         Dr. Wiskocil failed to disclose to the Patient the fact of the fracture and to recognize the severity of the injury despite apparently noting the correct diagnosis in his chart notes.  The referral to the spine clinic was proper, but lacked any urgency required for this situation.

 

10)       Dr. Gordon Weiss, spine specialist, recognized the seriousness of the condition, but he merely recommended an outpatient work-up, which was grossly delayed, instead of immediate hospitalization.

 

11)       Dr. Walter Burnham was the surgeon on all three surgeries.  By the time the fracture - dislocation was diagnosed, surgical treatment had become more complex and paralysis was a possibility.  Irrespective, errors in surgical decisions and techniques contributed to the paraplegia. 

 

A)        The preoperative work-up was insufficient.  Only a CT scan was taken, and not an MRI or myelo-CT scan, despite signs and symptoms of spinal cord compression.  There was spinal cord compression from soft-tissue callus which would have been visualized best with a MRI/meylo-CT.  Had these studies been obtained, it should have initiated neurosurgical consultation to perform spinal cord decompression with the first surgery.

 

B)        The first surgery stabilized the fracture, but did not include a laminectomy to decompress the spinal cord.  The operative report does not mention laminectomy, nor does it mention the dural tear that was repaired during the later surgery.

 

C)        Dr. Burnham opined in his much belated surgical report, a failure to adhere to the standard of care in and of itself, that the paraplegia was caused by cord stroke from the sacrifice of segmental vessels over the vertebral bodies.  He also finds fault with the lack of communication by the neuro monitoring personnel.  However, the cause of the paraplegia was spinal cord compression / trauma due to the surgery.  When the intervertebral cage was placed, it caused a slight bone retropulsion into a tight canal narrowed by callus and sagittal malalignment. This is shown on the subsequent myelo-CT scan.  Of note, the operative report was dictated a full month later (5/14/03), and may not be an accurate reflection of the events of the surgery.

 

D)        The third surgery was a T9-11 laminectomy to remove fracture callus and to repair the dural tear.  There was neurologic improvement following surgery which indicates the patient’s deterioration was due to spinal cord compression and not a vascular event.  The spinal cord decompression should have been done during the first surgery.  This surgical report was again not dictated for a full month following the surgery and may not be an accurate reflection of the events of the surgery.

 

E)         Dr. Burnham’s opinion that the paraplegia was caused by a vascular event is belied by the fact that Patient is an “incomplete” paraplegic; a vascular event would cause complete paraplegia.