Case of a Surgeon Needing a Patient, Not a Patient Needing a Surgery

Mike Jacobs was a 32-year-old man who suffered a minor L-1 compression fracture as a result of an ATV accident. He was treated with pain medication and bracing for six weeks. In the face of decreasing pain, decreasing need for pain medications, and a return to work full time, the defendant neurosurgeon recommended he undergo a spine surgery called kyphoplasty on the basis of a radiology study that showed “possibly slightly more compression” of the fracture. Kyphoplasty is a surgery for patients with compression fractures caused by bone cancers, osteolysis or osteoporosis—conditions that prevent the normal healing of bones. According to published professional standards and guidelines, kyphoplasty was “absolutely contraindicated” for patients like Jacobs, with traumatic compression fractures and patients who are clearly improving on non-surgical management. During the surgery, the defendant misplaced razor sharp bone drills through the patient’s spinal canal bilaterally and injected hot cement, which tracked back through the misplaced instrument tracts, depositing the cement into the patient’s spinal canal.

In a lawsuit J&R filed on behalf of Jacobs, we alleged that kyphoplasty was an unnecessary surgery for which Jacobs was an improper candidate. We also alleged that the surgery had been performed incorrectly. At the time the surgery was performed, the defendant was seven months out of his neurosurgery residency, had recently taken a one-day training course on the kyphoplasty procedure, and was in the process of gathering the 100 cases he needed in order to complete the oral portion of his neurosurgical board certification. We argued to the jury that his was a case of a surgeon needing a patient, not a patient needing a surgery. The defendant argued that Jacobs was a proper surgical candidate, and leakage of cement is just a known complication. The jury deliberated two and a half hours before returning a verdict for Jacobs in the amount of $1,122,364.