Doris McArthur v. Susan Swank
Published: Jul. 20, 2002 | Result Date: May 31, 2002 | Filing Date: Jan. 1, 1900 |Case number: VC029437 Verdict – $0
Judge
Court
L.A. Superior Norwalk
Attorneys
Plaintiff
Defendant
Mark V. Franzen
(Carroll, Kelly, Trotter, Franzen, McBride & Peabody)
Experts
Plaintiff
Barry Ben-Zion Ph.D.
(medical)
Susan Sullivan
(medical)
Charles J. Murray
(medical)
Donna Pope
(medical)
Robert G. Watkins
(medical)
Defendant
Norman S. Namerow
(medical)
T.A. Leclercq
(medical)
Earl Nishimura
(medical)
Edgar Dawson
(medical)
Facts
The 51-year-old plaintiff injured her back in May 1994, and was treated since then by the defendant, utilizing
epidural injections, pain medication and physical therapy. The plaintiff's pain did not disappear.
An MRI done in October 1996, diagnosed spinal canal stenosis and degenerative disc disease from L3-S1 with
the most severe level noted to be L3-4. The plaintiff developed sciatica in her right leg.
On Oct. 8, 1996, defendant Dr. Susan Swank recommended a three-level lumbar fusion utilizing Pedicle
Screws from L3-S1. The plaintiff consented to the surgery.
In November 1996, the defendant attended a one-day seminar on spinal instrumentation where she was
introduced to "Ray Cages," another device used for spinal canal fusion besides Pedicle Screws. The seminar
was taught by the inventor of the Ray Cage, Dr. Charles Ray.
The Ray Cages were not recommended for three-level fusions but were deemed appropriate for two-level
fusions.
Dr. Swank then advised the plaintiff that she was only going to fuse two levels; namely L4-5 and L5-S1 based
on her information that the Ray Cages offered a greater success rate for fusion than Pedicle Screws.
The surgery was performed on Feb. 24, 1997, utilizing the Ray Cages at the aforementioned levels.
On the first postoperative day, the defendant noted that the plaintiff had a left foot drop. She was fitted with an
AFO brace and discharged.
While at home, the plaintiff fell, dislodging the L4-5 Ray Cage on the right. The plaintiff began to develop
right sided leg pain after that fall. This pain had disappeared following the initial surgery.
Dr. Swank re-operated on March 14, 1997, to remove the dislodged cage and to insert Pedicle Screws from L4-
S1.
The plaintiff's left leg, which was asymptomatic before the initial surgery, became increasingly weak and her
foot drop was noted to be permanent. She required a long leg brace, instead of an AFO, to ambulate. Use of the
long leg brace exacerbated her back pain.
She was subsequently seen by Dr. Robert Watkins who reoperated upon the plaintiff to remove "painful
hardware" and to fuse L3-4 on July 5, 2001. The plaintiff testified that Dr. Watkins' surgery did not alleviate
her pain.
Dr. Watkins had advised her that left leg weakness and foot drop would not be improved by the surgery.
The plaintiff is currently totally disabled.
Settlement Discussions
A C.C.P 998 demand of $750,000 was made. No consent was given so no offer was made.
Specials in Evidence
$150,000 $187,000 $1,700,000 $587,000
Deliberation
three hours
Poll
11-1
Length
11 days
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