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Fort Worth court of appeals addresses neuromonitoring malpractice in spine surgery case

Neuromonitoring technology allows advance warning to spine surgeons before they cause permanent nerve or spinal cord damage

The Fort Worth Court of Appeals recently entered an interesting opinion that shows the technical detail required of medical malpractice plaintiffs’ preliminary expert reports, which are mandatory under the 2003 tort reform Texas Medical Liability Act.

These expert reports can be notoriously devilish. Plaintiffs must serve them on defendants early in the litigation—no later than 120 days after each defendant files an answer in the lawsuit. Medical experts must form their conclusions based on incomplete facts because Texas law prevents any discovery or depositions—other than the medical records themselves—before adequate reports are served.

While at first blush that may seem reasonable, in some cases it’s preposterous. For example, we represent clients in a pending wrongful death medical malpractice lawsuit against Gateway Mid-Cities. A middle-aged man walked into this freestanding imaging center for a routine CT scan with contrast over some kidney stones. He had a severe reaction to the iodine-containing contrast media and died within an hour.

The Gateway medical records make no mention of the incident, 911/emergency medical service (EMS) response, or the patient’s death. Yet, the plaintiffs cannot obtain more information from Gateway, effectively limiting the information available to medical experts. It makes absolutely no sense!

This isn’t the only part of the tort reform statute, which is codified at Texas Civil Practice & Remedies Code Chapter 74, that’s rather odd in the real world. The Fort Worth appellate opinion styled Thomas Alexander Mitchell, M.D. v. Lesa Swanson; No. 02-19-00460-CV, Second Court of Appeals illustrates another. You can read the court’s opinion here.

In this medical malpractice lawsuit, the patient consulted a spine surgeon because of unrelenting pain in her lower back and legs. The surgeon ultimately suggested two spinal fusion surgeries. During the second surgery, the petition alleges that the surgeon’s technique was so bad that he drilled some of the screws into nerves at the center of the spinal cord rather than into bony structures.

According to the patient, as soon as she emerged from anesthesia, she complained of numbness, weakness, and terrible pain. She recalls that the surgeon didn’t share any complication with her, but rather attributed her complications to abnormal spinal anatomy.

During the surgery, the spine surgeon was assisted by a neurologist who performs neuromonitoring. Neuromonitoring is a type of electrophysiological monitoring that basically gives surgeons immediate warning if they venture into the wrong territory. It does this by measuring changes in electrical activity in nerves.

The lawsuit alleges that both the spine surgeon and neuromonitoring neurologist were negligent. The medical records only contained partial neuromonitoring reports and documentation, but the limited contents reflected that there were no abnormalities. The lack of complete documentation caught my attention because it is consistent with my experience from other neurosurgical cases where neuromonitoring was performed.

To comply with the tort reform statute as to the neurologist defendant, the plaintiff relied on a Houston neurologist, Dr. Amit Verma, to prepare a written report.

The lawsuit alleged that the defendant neurologist was negligent in monitoring and assessing the patient’s condition, and in failing to notify the spine surgeon when there were changes reflecting a problem.

Dr. Verma wrote two expert reports to provide fair notice to the defendant of the criticisms of his conduct. The medical expert concluded that, the medical record neuromonitoring “printouts showing absence of stimulated EMG [electromyography] below the thresholds that are mentioned in the report or the printouts of the train of 4 responses showing the presence of actual twitches.”

Thus, Dr. Verma concluded that the defendant neurologist account that the neuromonitoring showed no intraoperative abnormalities was likely inaccurate. The expert concluded that if the spine surgeon drilled multiple screws directly into the patient spinal nerve roots, would have likely produced significant changes in the neuromonitoring results, making it “highly improbable” that no changes would be shown on the monitoring.

One of the main ideas behind these preliminary, or Chapter 74, reports is to provide fair notice to the defendant of the conduct that is being criticized. To do so, the report must separately state the standard of care (what should have been done), how the defendant deviated from the standard of care, and how it harmed the patient.

Once the plaintiff serves an expert report, the defendant gets 21 days to object to its sufficiency. That’s exactly what happened in this case. Unfortunately, the expert report proffered by the plaintiff left low hanging fruit to attract a defense objection.

Among other things, the neurology defendant objected on the basis that Dr. Verma’s expert report didn’t specifically defined the standard of care. The Fort Worth Court of Appeals sustained this objection because, in fact, the report didn’t explicitly state the standard of care.

This is one of those areas where the statute is a bit silly. Dr. Verma’s report clearly gave the defendant notice of what the criticisms were. It didn’t, though, dot the I’s and cross the T’s by making a separate statement of the applicable standard of care.

For that reason, the court remanded (sent back) the case to the trial court to consider whether to grant the 30-day extension to cure the report, which is allowed by statute. The appellate court added that the trial court should be lenient in granting an extension and must do so if deficiencies in an expert report can be cured within the 30-day period.

If you’ve been seriously injured because of poor medical care in Texas, an experienced, top-rated Houston, Texas medical malpractice lawyer can help evaluate your potential case.

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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