Facts

In 2007, Brenda Kitrosser was referred to William Taylor, a surgeon at the University of California, San Diego Medical Center. Kitrosser suffered from back pain for a number of years, and when her pain worsened, she sought treatment with conservative management and declined to undergo open surgical procedures. After presenting to Taylor, Kitrosser was told about a minimally invasive surgical procedure called Extreme Lateral Interbody Fusion, a lateral approach to the spine developed by the medical product manufacturer NuVasive Inc. Taylor allegedly explained to Kitrosser that she would heal more quickly than with a traditional procedure and that he would not have to cut into the muscles on her back. He also told her that he had performed this procedure on numerous occasions and trained other surgeons in the procedure.T aylor also allegedly told Kitrosser that the nerve monitoring device would ensure her nerve safety.

Kitrosser consented to the XLIF procedure and it was performed on Sept. 3, 2008. During the surgery, Taylor utilized a NeuroVision device and implanted screws and rods into Kitrosser's spine. The NeuroVision, which was a nerve monitoring device, indicated no nerve proximity or nerve injury during the procedure. However, when Kitrosser woke up, she experienced severe pain and suffered from neurologic deficits. A scan the next day showed that a screw had been placed in her spinal canal and impinged a nerve root. The screw was removed two months later.

Kitrosser sued Taylor, alleging that his actions constituted lack of informed consent, breach of fiduciary duty, battery, fraud by concealment, fraud by misrepresentation, and negligent misrepresentation. She also alleged that his actions constituted medical negligence.

Kitrosser later learned that Taylor was extensively involved with NuVasive Inc., the developer of the XLIF procedure, and discovered evidence of an alleged conspiracy between the doctor and the company. Kitrosser also filed a separate action against NuVasive, alleging causes of action for negligence per se, fraud by misrepresentation, negligent misrepresentation, and fraud by concealment. The two actions were later consolidated. Later, Judd Laraway was voluntarily dismissed, and The Regents of the University of California and Taylor settled the Plaintiff's claims prior to trial.

PLAINTIFF'S CONTENTIONS:
Kitrosser alleged that during the procedure, Taylor implanted screws and rods into her spine without her consent. She also alleged that despite a scan revealing that a screw was impinging on a nerve root, Taylor did not tell her about the malpositioned screw.

Kitrosser also alleged that she relied on representations made by Taylor and NuVasive when consenting to the procedure, but that Taylor did not tell her that he was a consultant for NuVasive and that he was netting hundreds of thousands of dollars a year moonlighting for NuVasive. He also did not tell her that he held stock options in NuVasive and received royalties on sales of the company's spinal surgery products. Kitrosser alleged that NuVasive made false representations about the precision, reliability and safety of its NeuroVision device and that NuVasive conspired with Dr. Taylor to make these false representations. She further contended that NuVasive made false statements about the NeuroVision device being safe.

DEFENDANT'S CONTENTIONS:
Taylor argued that Kitrosser consented to the placement of the screws and that he had no duty to disclose his financial relationship with NuVasive because he had no financial interest related to her procedure. He also alleged that malpositioned pedicle screws were a known complication of spine surgery and that he had told Kitrosser about the screw when he received the scan results, but that Kitrosser had refused another surgery to reposition the screw.

NuVasive alleged that the representations about the NeuroVision device were not false.

Injuries

Kitrosser experienced excruciating pain as a result of the abnormal position of the pedicle screw. Her pain and neurologic deficits worsened, and she required additional surgeries to remove remaining hardware. She suffered from nerve impingement, neurological impairment; neurogenic bladder, numbness and weakness. After the surgery, Kitrosser woke up in excruciating pain as a result of the abnormal position of the pedicle screws. Her pain and neurologic deficits worsened, and she required additional surgeries to remove remaining hardware. She will require pain medications and periodic physical therapy to maximize her mobility. She also has difficulty ambulating without an assistive device.

Result

The jury found that NuVasive's statements were false and that NuVasive conspired with Taylor to commit fraud. Kitrosser was awarded $3,099,412 against NuVasive only.

Deliberation

12 days

Length

six weeks