Morrison Mahoney Partner Bill Smart and Associate Will Pearson recently obtained a defense verdict after a 9-day medical malpractice jury trial in U.S. District Court for the District of Maine.
Plaintiff alleged that our client, a physiatrist, and others were negligent in failing to diagnose cervical myelopathy in a 37-year-old patient who suffered a workplace injury that ultimately led to an emergent cervical decompression and fusion with permanent neurological impairment of the left upper and lower extremities. The patient returned to work and was being treated conservatively by an occupational health physician for balance issues and headaches that were attributed to a concussion until about two months post-injury, when he reported right hand weakness and numbness in all five fingers.
Shortly thereafter, our client was asked to perform nerve conduction studies and an electromyographic, or “EMG,” needle examination that demonstrated a mild, lower trunk brachial plexopathy with no electrodiagnostic evidence of cervical myelopathy, radiculopathy, or other peripheral never injuries or entrapments. Plaintiff argued, among other things, that our client’s history, physical examination and EMG were incomplete, that the diagnosis of brachial plexopathy was therefore unsubstantiated, and could not be differentiated from radiculopathy, and that our client should not have commented on myelopathy (which is a central nervus system issue). This allegedly caused plaintiff’s occupational health physician to delay ordering a cervical MRI and/or neurosurgical referral, and to continue treating the patient conservatively until his condition rapidly worsened about six months later. The occupational health physician settled well prior to trial but did testify as a witness.
Bill and Will argued, and presented evidence, that our client’s exam and testing were reasonable and within standard of care for an “EMG only” of the right upper extremely, and that Plaintiff likely did not develop cervical myelopathy until months later. The Chief of Neurosurgery at a major Boston-area hospital testified for the defense that while Plaintiff probably had degrative cervical spondylosis and stenosis, cervical myelopathy is a clinical diagnosis. He testified that Plaintiff lacked any of the cardinal clinical symptoms of myelopathy at the time of our client’s EMG, and therefore, an earlier MRI and surgical consult likely would not have led to earlier surgical intervention, or a better outcome for the plaintiff. All experts agreed that it would not be appropriate to rely on an EMG to rule out cervical myelopathy (whether the occupational health physician in fact, did so, was disputed), and that the surgery itself was inevitable, and unavoidable.
Nine total expert witnesses testified, including four damages experts, plus five fact witnesses. The jury deliberated for about three hours before returning a defense verdict on causation
