Facts

Robert Rosario was injured at work on September 9, 2016 when he tripped and fell, striking his right hand and head on a concrete wall. The initial medical treatment focused primarily on his right hand and wrist but concern began to develop regarding his cervical spine, with persistent pain and reduced range of motion. In addition, physical therapy for his neck had to be discontinued with an acute increase in symptoms after a experiencing a "pop" in his neck after a session in the latter half of October, 2016.

An MRI of the cervical spine was performed on October 24, 2016, revealing all of the following findings:

*4-5 mm broad disc protrusion at C3-4 that extends inferiorly along posterior endplate of C4, compressing the cord and resulting in high-grade spinal stenosis;
*3-4 mm paracentral disc protrusion at C4-5 which begins midline and extends laterally to the right, impinging on and moderately flattening the right anterolateral aspect of the cord; *2-3 mm midline disc protrusion at C5-6 which compresses and partially deforms the cord.

Mr. Rosario was then seen by Byron Ted Field, M.D. for an orthopedic surgery consultation on October 27, 2016. Dr. Field noted the pathology identified in the MRI report, without specifically documenting the presence of cord compression. His evaluation of the patient did document the absence of clonus (one of the tests included in an evaluation for cervical myelopathy) as well as the fact that the patient's reflexes were symmetrical, but did not document any gait evaluation or that a Hoffman's test, a Babinski's test, an inverted supinator sign test or a Lhermitte's sign test were performed.

Not believing that the patient was experiencing a cervical myelopathy at that time, Dr. Field recommended limited physical therapy (cervical traction) for two sessions and asked the patient to return in 2 weeks, at which time consideration of pain management would be discussed. However, Dr. Field also informed Mr. Rosario that he would potentially need surgery to address the findings on MRI if his symptoms persisted or did not improve.

Mr. Rosario did not return to the care of Dr. Field but instead sought a further evaluation from orthopedic surgeon, Dr. Raj Dhalla, on November 3, 2016. A the time of that office visit, Dr. Dhalla's gait evaluation was abnormal and the patient was felt to be exhibiting cervical myelopathy. Accordingly, Mr. Rosario was promptly referred to a spine surgeon, Dr. Vrijesh Tantuwaya.

Dr. Tantuwaya saw Mr. Rosario on November 23, 2016, finding him to be grossly myelopathic and describing the MRI findings to be "alarming". He immediately placed the patient under severe restrictions of activity, as well as a cervical collar, and requested authorization for emergent surgery. That surgery was performed on December 16, 2016 with successful decompression of C3-4 and C4-5.

Despite that surgical intervention, Mr. Rosario continued to deteriorate neurologically in the months following surgery, losing all ability to ambulate independently and with loss of normal sensation, motor function, sexual function and normal bowel and bladder control.

PLAINTIFF'S CONTENTIONS: Plaintiff contended that Mr. Rosario was experiencing cervical myelopathy at the time that he was seen by Dr. Field on October 27, 2016 and that this diagnosis was missed by a sub-standard evaluation, which omitted any gait evaluation or appropriate testing to rule out that diagnosis (a Hoffman's test, a Babinski's test, an inverted supinator sign test and a Lhermitte's sign test). Mr. Rosario argued that he should have been immediately placed on activity restrictions with a cervical collar and scheduled for emergent decompression surgery, especially in light of the alarming findings on the MRI scan of October 24, 2016. It was claimed that if he had been taken to surgery in the 2-3 weeks following that office visit, he would have been restored to normal health with no neurologic deficits. By the time he reached the office of Dr. Tantuwaya on November 23, 2016, those neurologic deficits were permanent and progressed as the cells of the cervical spine progressively died.

DEFENDANT'S CONTENTIONS: The defense contended that the MRI findings of October 24, 2016 were not alarming and that it was reasonable to give the patient a short course of cervical traction to alleviate symptoms while waiting to see if the body could resolve or reduce the acute compression of the spinal cord. The defense argued that the evaluation performed by Dr. Field on October 27, 2016 to rule out cervical myelopathy was adequate and that this evaluation did not require a full battery of tests (such as a Hoffman's test, a Babinski's test, an inverted supinator sign test and a Lhermitte's sign test). Based upon the testing and evaluation that was performed, the patient was not yet myelopathic on October 27, 2016.

By the time the patient reached the office of Dr. Dhalla on November 3, 2016, he was starting to exhibit signs of myelopathy and he was indeed grossly myelopathic by the time he was seen by Dr. Tantuwaya on November 23, 2016. However, even at that time, it was not a surgical emergency and there was still plenty of time for a timely surgery to decompress the cervical spinal cord. The surgery of December 16, 2016 should have been sufficient to resolve all of the patient's symptoms.

The defense explained that it was not clear why this patient's symptoms did not improve following surgery, and in fact, dramatically worsened, but that progression of symptoms could not reasonably be attributed to a delay in proceeding to surgery.

Damages

Plaintiff asserted a future loss of earnings claim of approximately $635,000 (present value) as well as future medical expenses approximating $1,895,000 (present value). The claim for lifetime attendant care reached another $7,300,000 (present value), with total future economic losses totaling a present value of $9,830,000. Plaintiff also contended that the jury should disregard the present value calculations of Heather Xitco as unsupported and return an award of economic damages approximating $13,000,000.

Injuries

Mr. Rosario contended that his neurologic injuries prevented him from ever working again in any capacity and left him with the need for extensive future medical care, as well as life-long round-the-clock attendant care. Plaintiff conceded that his past economic loss had been covered by worker's compensation benefits, but that those benefits would not come remotely close to addressing his future economic losses. Plaintiff asserted a future loss of earnings claim of approximately $635,000 (present value) as well as future medical expenses approximating $1,895,000 (present value). The claim for lifetime attendant care reached another $7,300,000 (present value), with total future economic losses totaling a present value of $9,830,000.

Result

Defense verdict.

Deliberation

one day

Poll

11-1 on the initial issue of negligence.