Spinal Surgeon/Doctor Wins Virginia Medical Malpractice Lawsuit Against His Spinal Surgeon-Who Botched Surgery

Posted by Rick Shapiro
Thursday, August 07, 2008 9:24 AM EST

What happens when a spinal surgeon requires spinal surgery himself, and the spinal surgery is botched by the Virginia spinal specialist/physician he selected, leaving the injured surgeon with chronic pain syndrome? What happens is he retains a personal injury lawyer and a Virginia medical malpractice lawsuit arises and the spinal surgeon with serious spinal injuries casts aside every anti-tort, anti-medical malpractice argument he may have favored before the day he was permanently harmed! Ultimately, the Richmond State court Judge, in Garver v. Mathews, CL No. 07-206, ruled that defendant, Doctor Mathews violated medical standards, and awarded Dr. Garver $650,000.00 in damages, as explained below.

Dr. Eric Garver, a spinal surgeon/physician from Connecticut, traveled to Richmond, Virginia in 2005 and underwent surgery by Dr. Mathews, a spinal surgery specialist then based in the Richmond area who was the principal investigator for the Maverick ™ device and helped pioneer a spinal surgical procedure involving inserting the Maverick brand medical device in the spine—the device simulates the natural way vertebral discs move despite removal of the spinal disc between the bones of the spine, in contrast to traditional spinal fusion surgery, which often removes the jelly-like spinal disc, and “fuses” together spinal bone, reducing overall spinal mobility. The marketing angle of the Maverick brand device is that it largely preserves spinal mobility, whereas spinal fusion does not.

Dr. Mathews was at the cutting edge of back/spine surgeries involving the Maverick artificial disk device. According to published reports in Virginia Lawyers Weekly, a maverick device has two metal plates that fit into a patient's disk space with a ball and a socket, and ball and socket is designed to maintain natural movement of the disk between the vertebral bone above and below the device.

However, Dr. Garver's lawsuit (handled admirably by his Virginia and Washington, D.C. co-counsel) alleged that a bone disk fragment the size of an olive was taken out of Dr. Garver's spine two weeks after the original surgery by a neurosurgeon conducting revision surgery in Connecticut. The Connecticut neurosurgeon who found the fragment, testified that at fragment of bone or disk was pressing against the nerve root in Dr. Garver's back. Dr. Garver was left with chronic pain. Evidence came out during the trial that Dr. Mathews received consulting fees from the manufacturer of the maverick device, Medtronic, that were quite considerable. During 2004-2005, Dr. Mathews was paid $700,000 and by the end of 2006, Dr. Mathews gave up his own surgical practice entirely and now works full-time for Medtronic as a vice president.

Judge Markow, of the Richmond Virginia Circuit Court, issued a written opinion in which he found that Dr. Mathews had violated the standard of care in preparing for disk space for insertion of the Maverick artificial disc. The judge referred to the medical standard for this surgery that had actually been written in part by Dr. Mathews himself. The materials, in writing, stated that the disk space was to be meticulously cleared of materials that might be driven into nerves behind the disk space, by insertion of the artificial disc. The judge found that apparently, Dr. Mathews drove some material from the disk space into Dr. Garver's nerve root on the right side near the L5-S1area involved in the surgery. Apparently, this caused permanent injury to the nerve resulting in chronic pain for Dr. Garver.

My take on this:

This case speaks volumes about our personal injury/medical malpractice system. This scenario would be like my law firm, Shapiro, Cooper, Lewis & Appleton representing a personal injury lawyer who was injured in a car accident. I know that I'd better give the best representation that I can, and work my butt off for my colleague! If I clearly failed to handle the case properly, I would expect my colleague to know about it and to know what to do-hold me liable!

Medical malpractice arises in many different ways and under many circumstances but it is hard to imagine that this particular incident could have happened had Dr. Mathews been using the care required of all spinal surgeons—whether inserting a Maverick device or simply conducting traditional fusion surgery. The tort/personal injury system in Virginia and all the United States that allows medical negligence lawsuits provides some measure of compensation for one who is permanently injured by the negligence of another. Many who argue strenuously in favor of roadblocks against medical malpractice suits, or who favor massive tort reform, have never been harmed themselves, or had a family member permanently injured. If so, they would sing a different tune.

http://www.injuryboard.com/printfriendly.aspx?id=245238

I'm glad to see the plaintiff won in this lawsuit, but I wonder if the same result would have occurred had the plaintiff himself not been a spine surgeon and thus considered an expert in the field. Having that expertise only helps his attorney understand and put up such a good fight. It seems only a fellow spine surgeon could afford, understand the prove such a case but we are lucky there is precedent. Medical malpractice cases are very hard to win.

I hear this argument all the time and it is usually fueled by the insurance companies themselves who lead you to believe that most people are gold-diggers who have lawyers marketing to them about how rich they both are going to become. At the end of the day the profit with insurance companies make most cases settlements small and petty. I personally sued for one reason alone. My medical out of pocket expenses were $74,000 after my accident. That money will result in the difference of a nice retirement down the road vs. living in poverty or working till I am dead. I only wanted to get my money back. I never was out to get wealthy. The scumbag lawyer representing State Farm was James Cotant from Michigan and he was a jerk the whole way through. He acted like the money was coming out of his pocket and was far more abusive than he had to be. I got my money back with a huge fight that went to mediation. I sure did not get rich but State Farm could not have cared less about my injuries. They expect most of us to cave in and settle for peanuts. I am too much of a fighter and would do this all over again to get my money back. I agree that many people judge from afar until they are in a similar predicament. I am damaged for life and this lady only had a measley $100,000 policy. I should have gotten way more than I did but did not want to take their house. I figured I had to live with myself at the end of the day and did not let greed guide my actions. Most people are injured people looking for a little compensation for this. The frivolous MacDonald's hot coffee suit is what the insurance companies want you to believe every lawsuit is about.

Terry Newton

I can't sue in Texas and the out of pocket expenses are so great and continue to mount because of one surgeon's negligence that it will make the difference and we will live in poverty through retirement and my husband will have to work until the day he keels over dead and then, if I am still around I will be stuck in some H...hole place unless I get some life back from Dr. Regan's attempt to fix the screw-up from my disks being put in wrong and can work again for awhile. I sound really bitter...I'm working on it! God help me! I hope and pray Dr. Regan can work miracles with my back and spine so I can work or we are really up a creek with no paddle.