MichieHamlett Attorneys Tony Russell and Les Bowers Receive $4,000,000 Verdict on Behalf of Paralyzed Client in Neurosurgical Malpractice Case
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Case: David Wolfe v. Jae Lim, M.D. and Atlantic Brain & Spine
Venue: Fairfax County Circuit Court
Judge: Hon. Michael Devine
Trial Dates: October 11-19, 2022
Date of Injury: July 14, 2016
Injuries: Paralysis with T9 sensory level, lack of bowel and bladder control
Result: $4,000,000 plus interest verdict. Will be reduced to $2.25 Million due to Virginia’s medical malpractice cap
A man with symptoms from a thoracic (mid-back) disc herniation undergoes surgery in Fairfax, Virginia. The surgeon uses a surgical technique that he justifies as being “new” and better, but which has long been abandoned and discredited by all known surgical authorities due to the risks posed by the technique. When the patient wakes up from anesthesia, he is permanently paralyzed. Though this was exactly the reason why the doctor’s technique was banned, he refuses to admit liability. Instead, he denies everything and lawyers up.
After six years of litigation, and multiple trial continuances due to COVID, his case finally came to trial in October 2022. Would the jury side with the patient, finding that the doctor’s procedure was inappropriate and had been rejected by the surgical community for decades? Or would the jury accept the defendants’ arguments that a doctor can “innovate” (without telling the patient), use his “discretion” and “judgment”, and that the patient’s paralysis was due to something other than the doctor’s actions?
On July 14, 2016, Dr. Jae Lim took Mr. Wolfe, age 58, to the OR to decompress a T9-T10 right posterior disc herniation that had been causing him some problems for several months. Dr. Lim told Mr. Wolfe that he would perform a “costotransversectomy”, a procedure in which the surgeon removes some or all of the rib, and a small piece of bone on the vertebra. The reason for removing these structures is so that the surgeon can approach the herniated disc from the side, which poses a much lower risk of injuring the spinal cord than if the surgeon goes in from the back. This is the generally accepted and taught technique for performing this surgery. And though any spine surgery is serious, orthopedic and neurosurgeons perform this surgery every day without significant complication.
However, once Mr. Wolfe went under general anesthesia, Dr. Lim deviated both from what he had told Mr. Wolfe and the technique that is accepted all over the world. Instead of going in from the side, Dr. Lim began the procedure by making a vertical incision down the plaintiff’s mid-back. He then removed part of the lamina, part of the facet, and part of the spinous process. He did not remove any rib or any transverse process, nor did he remove any of the pedicle.
During the procedure all signals were lost on the neuromonitoring, revealing a likely spinal cord injury. When this happened, Dr. Lim allegedly paused, took stock of the situation, and then continued with his procedure. He did not remove the entire disc and did not insert cages into the interspace as originally planned. In the PACU, Mr. Wolfe was unable to move or feel his legs andhis condition did not improve postoperatively.
Postoperative MRI revealed cord signal change consistent with an intraoperative injury. The same MRI also revealed that the spinal cord compression was the same, if not more severe, than it was before the procedure. Thus Dr. Lim not only failed to remove the disc, but he also failed to remove the disc herniation that was compressing the spinal cord in the first place.
Dr. Lim never explained to Mr. Wolfe what happened or why it happened.
Mr. Wolfe never recovered sensation or motor function in his lower extremities, bowel, or bladder. He was ultimately discharged home after a short stay in inpatient rehab. At home, he was unable to access any room but the living room, and as such the family converted the living room into his living quarters. He cannot go upstairs or downstairs, and cannot fit into any of the
bathrooms in the house with his wheelchair. His wife performs all of his care including changing his adult diapers, emptying his catheter bag, and giving him sponge baths (because he cannot access a bathroom, and even if he could, he has no accessible shower).
Plaintiff’s Proof that the Defendant Breached the Standard of Care:
Plaintiff’s two orthopedic spine surgeons testified that Dr. Lim did not perform the costotransversectomy that he had told Mr. Wolfe he would perform, and which is the accepted method to access a hernia like Mr. Wolfe’s. Instead he performed a laminectomy, which is a posterior approach. The experts explained, with references to over a dozen pieces of medical literature dating back to the late 1800s, that a laminectomy alone was absolutely forbidden for thoracic disc herniations because the approach does not permit the surgeon to reliably avoid hitting, retracting, or otherwise causing injury to the spinal cord. They testified that Dr. Lim’s approach (in which he removed only the lamina and part of the facet joint) was a forbidden posterior approach. They said that his approach looked like this:
The defense argued that these experts “were not in the OR” and therefore “couldn’t know” if Dr. Lim hit the cord or not. Dr. Lim, of course, was adamant that he did not hit the cord, would never touch the cord, etc. Mr. Wolfe’s’s experts explained, however, that the entire reason that Dr. Lim’s surgical method was forbidden was because the surgeon could hit the cord without even knowing it. That is why the standard of care required the surgeon to come from the side or the front—to almost completely eliminate the risk of hitting the cord. Because Dr. Lim did not do so, he was negligent.
Mr. Wolfe’s experts also showed that many of Dr. Lim’s medical records were at odds with what he actually did, and with what he and his experts were testifying to in trial. They showed that Dr. Lim’s operative report, discharge summary, and other records were littered with errors, and they countered the “moving target” testimony from Dr. Lim and his experts regarding what happened during the surgery.
The defense could not find any literature to support their case. Apparently, no one had ever written anywhere – medical textbooks, surgery journals, even non-peer reviewed journals from foreign countries – that Dr. Lim’s approach was acceptable. The defense instead tried to deflect by using literature saying that herniated disc surgery has an X% rate of complication. However, all of this statistical risk of procedure evidence was properly excluded by the court under well-established Virginia law because the literature did not break down those complications to state which occurred due to negligence, and which occurred in the absence of negligence.
Without anything to back up their opinions, the defense experts relied upon their credentials and Dr. Lim’s testimony. They argued that because Dr. Lim took some of the facet joint, and because (according to Dr. Lim) he had a “wide view” of the disc and the spinal cord, and because (according to Dr. Lim) he was able to stay to the side ofthe cord, his technique was acceptable. The defense experts all admitted that Dr. Lim did not remove any rib (the “costo” in costotransversectomy) or any of the transverse process (the “transverse” in costotransversectomy), but that it did not matter because a surgeon could modify a procedure however he wanted and could call it whatever he wanted.
In fact, defense expert Dr. Daniel Sciubba testified that there were “no rules” and that a surgeon could do “whatever he wanted.” He even said that a surgeon could call a procedure one thing “for billing purposes” (i.e., so that the surgeon can get paid), and then do something entirely different. On cross examination , Dr. Sciubba admitted that the one article he had ever published on thoracic disc herniations specifically warned about posterior approaches (like Dr. Lim’s) and recommended for a safer approach. Dr. Sciubba said that he would not do the procedure the way that Dr. Lim performed it, but that it was nevertheless reasonable and “innovative” for Dr. Lim to perform the surgery contrary to all known literature and teaching. In terms of naming the procedure that Dr. Lim actually performed, Dr. Sciubba’s testimony evolved from saying that Dr. Lim performed a costotransversectomy, and then a “modified costotransversectomy”, then simply a “posterolateral approach”, and then finally he admitted “I don’t know what to call what he did.” Dr. Sciubba also admitted on cross that he testified mostly for the defense in medical negligence cases because “doctors told their lawyers to call him for help.”
The defense also relied upon Dr. William Broaddus, a neurosurgeon from VCU. Dr. Broaddus had never published or presented on thoracic disc herniations at all. He admitted that he had never testified against another spine surgeon, and that he would never testify against someone with a VCU affiliation (Dr. Lim is VCU affiliated clinical faculty). He also said that it had been over 10 years at VCU – a nationally-renowned teaching hospital – since he had been involved in any proceeding to evaluate the quality of care provided by another surgeon.
After Dr. Sciubba’s failed efforts to provide a description of Dr. Lim’s procedure, Dr. Broaddus (with knowledge of what had happened in the prior days of trial) came up with an entirely new name for Dr. Lim’s procedure which had never been part of the case at all. Dr. Broaddus was ultimately forced to admit that no one had ever called Dr. Lim’s procedure by this name. He also doubled down on Dr. Sciubba’s testimony, arguing that a surgeon could use his “judgment and discretion” to do whatever he wanted to do. On causation, Dr. Broaddus continued Dr. Sciubba’s argument that Dr. Lim did not hit the cord. However, his only basis for saying that Dr. Lim did not hit the cord was that Dr. Lim said that he didn’t the cord.
Mr. Wolfe’s causation case was simple: the cord was injured at the time that neuromonitoring signals were lost, and the injury was a result of Dr. Lim striking the cord with an instrument. We even used the defense medical illustration to show that Dr. Lim’s surgical approach, even as he described it, endangered the cord.
The defense causation strategy was to obfuscate. The defense experts concluded that Dr. Lim did not strike or retract the cord, and the basis for that opinion was that Dr. Lim said he didn’t. They fell back on the standard defense that “bad outcomes can happen in the absence of negligence.” But their real argument was that this was a “reperfusion injury” that occurred when the lamina was opened and the spinal cord was suddenly decompressed and fresh, oxygenated blood rushed into the previously severely compressed areas and caused injury. Their evidence of this was (1) that Dr. Lim said he didn’t hit the cord; and (2) according to Dr. Lim, the neuromonitoring signals were lost while Dr. Lim was doing absolutely nothing, just standing idly by in the OR.
The defense experts argued that the decompression of the spinal cord before signals were lost caused injury that was not due to negligence. However, Dr. Lim continued to decompress even after signals were lost. The defense experts argued that this decompression, however, did not cause injury but instead was actually beneficial. In other words, the defense’s reperfusion injury theory – like most of the rest of their case – relied upon the records and facts when convenient, and discarded them when it was inconvenient.
We did not introduce any medical bills, lost wages, or future lost earnings. So as to simplify the case and eliminate needless evidence, we elected in the middle of trial not to call our life care planner.
Mr. Wolfe and his wife were the only damages witnesses. They explained how Mr. Wolfe could not fit in his bathroom, or in any room in his home other than the living room. Thus, he had been living in the living room for the last six years. They also testified to a rather horrific bowel regimen that Mr. Wolfe forced himself to endure because he could not afford any assistance during the week while his wife was working.
In closing, among many other things, we pointed out that even though the defense experts came from great schools and the defendant himself was well-educated (Stanford, Yale, UCLA, Cedar Sinai), EVERY expert had to show support for their opinion. “Because I said so” and pointing to a fancy degree is not enough. We pointed out that our experts came with literature supporting both the standard of care and causation while their experts had nothing because there literally was no literature that had ever been published that endorsed Dr. Lim’s surgical approach. We highlighted the absurdity and dangerous implications of the defense testimony that there were “no rules” and that a surgeon allegedly had “unlimited judgment” and could “do whatever he wanted to do.” We told the jury that this case presented a choice between facts and science versus unsupported opinion. Our thinking was that all of these themes would resonate well with our jurors regardless of their political affiliation.
We told the jury in opening that we would ask for $4 million dollars. In closing argument, we asked for $4 million plus interest, explaining that interest should be awarded because Mr. Wolfe had to wait six years for justice, six years for someone to hold Dr. Lim accountable for wrongdoing he would never admit to, and six years of time and stress and expenses.
Instructions, Jury, and deliberations
For jury selection, we basically had two criteria. First, no healthcare providers. It was our belief that most healthcare providers have been indoctrinated to believe that the civil justice system should not apply to them, and that they could not likely shake this unconscious belief. Second, we wanted people whose jobs involved rules, “black and white”, “one plus one equals two”, etc., as opposed to more humanities-trained jurors for whom there might be a lot of “discretion” and “gray area”.
Our jury demographic fit this profile well. We were able to exclude the healthcare providers, and those who remained were prototypical Fairfax jurors: well-educated, high earning government employees, engineers, accountants, and computer programmers. All of our jurors were or had been engaged in rule-oriented, quantitative-type jobs.
After closing argument, the jury went out at 12:15, took an hour lunch break, and returned at 4pm, awarding exactly what we asked for in closing: $4,000,000 plus interest from the date of the life-changing surgery in 2016.
Mr. Wolfe was relieved to have justice rendered for him. But of course, he was disappointed that an unconstitutional med mal cap remains on the books in Virginia with little hope of change given current politics.
It is hard for many people to understand why we need civil juries in America, why Plaintiffs’ lawyers serve an important role in our society, and why lawyers would risk so much time and money for clients in the face of seemingly-insurmountable odds, a medical community biased against evaluation by outsiders, and unlimited insurance company resources. These cases are hard, and they are not for the faint of heart. But, only those who have ever held the hand of a permanently injured client while awaiting a verdict, feeling how nervous and tense and scared he is – and can then feel the physical and emotional release when the jury returns a verdict for him – can truly understand why we do what we do. Cases like this not only make it possible for the client to live with some measure of dignity for the rest of his life, but they also improve the quality of care everywhere by shining a light on bad medical practices and the illegitimate excuses used to support them.
We at MichieHamlett would like to thank the jurors and the court personnel for their time, attention, and sacrifice during the course of this nearly two-week trial. Without their sacrifice, justice would not have been done