Facts

On April 22, 2000, plaintiff Leo Mercado, 68, fell in his backyard and injured his left shoulder. X-rays taken at Garfield Hospital revealed that he had not sustained a fracture or dislocation but had an obvious deformity of his shoulder, and no other injuries to the rest of his body. His shoulder was painful and the hospital prescribed pain-relieving medications and he was told to see an orthopedist. He waited until May 7, 2001 when he saw the defendant, Dr. Robert Spector M.D., in Century City upon referral by his HMO. Dr. Spector is not a board certified orthopedist but is board eligible. The defendant diagnosed a shoulder separation and, because the clavicle was elevated, he told the plaintiff that he required surgery to relieve the pain and to be able to resume normal function; otherwise to do nothing and continue to suffer. The surgery consisted of implantation of a screw to attach the clavicle to the coracoid process. No other options were discussed. Unhappy with the limited choice, the plaintiff asked his HMO whether he could have a second opinion, which was declined. He therefore followed the defendant's advice and underwent the first of three unsuccessful screw insertion procedures, July 20, 2001, Aug. 2, 2001 and Aug. 20, 2001. During the first surgery, the defendant, operating without an assistant surgeon, inserted a 40 mm screw which he later testified may have been too short. In the second surgery, notwithstanding an assurance that he would use a larger screw, again he used a 40 mm screw (disputed), which quickly failed. Again, there was no assistant surgeon. The screw had missed the bone altogether and had been inserted into soft tissue (disputed). The third surgery, again without an assistant, took place on Aug. 20, 2001and the defendant again inserted a 40 mm screw through the clavicle along with a 45 mm screw drilled through a second hole in the clavicle into the same coracoid hole as the other screw. Again, the screw insertion failed and the plaintiff was left in severe pain and unable to find another orthopedist for over two years who was willing to address the problem. Finally, the plaintiff was referred to another orthopedist, Daniel Silver, M.D. in Tarzana who, removed the failed screws and with an assistant surgeon, Dr. Roth, repaired the shoulder separation in an entirely different manner without resorting to screws and by using, among other things, cadaver tendon. The operation was successful and ultimately, the plaintiff was relieved of severe pain and has good functional, although limited, use of his left shoulder.

PLAINTIFF CONTENTIONS:
Based upon plaintiff's expert testimony, it was accepted that the plaintiff's shoulder separation would have had a 70 to 80 percent chance of healing without surgery. Dr. Silver explained to the jury that the screw fixation method employed by Dr. Spector was totally inappropriate, outdated and below the standard of care. Dr. Silver explained that the plaintiff's separation was Grade II which, according to all doctors, including even the defendant, never does require surgery for the separation itself. The defendant's own orthopedist expert told the jury that of the 300 to 400 shoulder surgeries he does annually, in addition to those performed by his partner, screws are never used to correct a shoulder separation although he said the defendant's method was within the standard of care. It was also alleged during trial that the defendant had materially altered his medical records to attempt to justify surgery and to show the patient's satisfactory recovery. DEFENDANT

Based upon plaintiff's expert testimony, it was accepted that the plaintiff's shoulder separation would have had a 70 to 80 percent chance of healing without surgery. Dr. Silver explained to the jury that the screw fixation method employed by Dr. Spector was totally inappropriate, outdated and below the standard of care. Dr. Silver explained that the plaintiff's separation was Grade II which, according to all doctors, including even the defendant, never does require surgery for the separation itself. The defendant's own orthopedist expert told the jury that of the 300 to 400 shoulder surgeries he does annually, in addition to those performed by his partner, screws are never used to correct a shoulder separation although he said the defendant's method was within the standard of care. It was also alleged during trial that the defendant had materially altered his medical records to attempt to justify surgery and to show the patient's satisfactory recovery. DEFENDANT CONTENTIONS:
The plaintiff presented on May 7, 2001 with a serious Grade III separation-dislocation of the acromio-clavicular joint. The plaintiff was told he could have surgery to reduce the elevation or he could do nothing and live with "the bump." The plaintiff testified he was told by defendant that he would be a "cripple" for life if he refused the surgery. The plaintiff's HMO initially refused to authorize the surgery, but relented after the plaintiff insisted that conservative care was not working. The defendant contended that the technique used by the defendant was a recognized procedure in reducing these types of dislocations and is described in standard orthopedic texts. It is admittedly a procedure used by a minority of orthopedic surgeon. Over objection by the defense, the defendant's expert was allowed to be cross-examined on the method he uses, and he does not use the screw method, but accepts it as a standard procedure. According to the defendant's expert, failure of the screw to hold, even twice or three times, occurs in the absence of negligence. There was no clear proof of when the third surgery failed, as shortly after the third surgery, the plaintiff discontinued his care with the defendant. The plaintiff's subsequent treater expert, Dr. Daniel Silver, addressed issues not of concern in May 2002 (e.g., arthritis of the joint) and consequently he did not just "re-do" the plaintiff's last surgery.

Settlement Discussions

The defendant originally made a C.C.P. Section 998 offer for $100,000; subsequently increased to $120,000 with an indication of $150,000 being available. The plaintiff made a C.C.P. Section 998 demand for $750,000 but indicated he would accept $250,000 in settlement. At trial, plaintiff's counsel asked the jury to award $250,000 for each of the three failed, negligent surgeries, plus $4,162 in economic damages. The jury returned, after two hours, a 10-2 verdict in the amount of $754,162.

Injuries

The plaintiff claimed he still had pain and lack of motion at the time of trial. The plaintiff and his wife testified that his physically active life had been totally eliminated by his shoulder problems, and that he was in constant severe pain from the date of the fall in 2001, until being discharged from Dr. Silver's care in 2004.

Other Information

During the course of trial, the plaintiff's handwriting expert testified about alleged unlawful changes made by the defendant to his medical records. The defense handwriting expert also demonstrated how some of the entries by the defense had been inexplicably altered. The jury made no finding whatsoever that any record was falsified or otherwise altered. The jury found that the plaintiff will suffer no damages, economic or non-economic in the future. Motion to reduce verdict to $254,162 per California Civil Code section 3333.2 to be heard on May 31, 2005.

Deliberation

two hours

Poll

10-2

Length

eight days