News: A patient underwent spinal surgery but continued to suffer from pain in her mid-back. The patient subsequently sought treatment from a different physician and underwent a second surgery, which successfully eliminated her pain.

Following the second surgery, the patient brought a medical malpractice action against the first physician and alleged that the physician incorrectly performed the surgery and furthermore misrepresented the outcome of the surgery. The physician denied the allegations. A jury agreed with the defendant physician and found no liability.

Background: In 2009, a woman began experiencing back pain, originating in her mid-back and wrapping around her rib cage, extending upward to her sternum. After seeking treatment, a physician informed the patient that the CT angiogram and MRI showed a 4 mm disc protrusion at the T6-T7 level. The protrusion led to a compression in her spinal cord, causing the pain. The patient initially sought a more conservative treatment, but it did not alleviate the pain.

After the unsuccessful treatment, the patient scheduled a surgery with a physician to remove the protrusion that was causing the spinal compression. Following the surgery, the physician allegedly claimed the operation was successful and resolved the disc herniation. However, the patient continued to experience pain, and the physician ordered a new CT scan. According to the patient, the physician further asserted that everything had gone as planned and that the postoperative CT scan showed no compression in the patient’s spine.

Despite the stated success of the surgery, the patient’s pain persisted. The patient consulted another physician who, after analyzing the scans, identified a protrusion at the same level, which continued to cause spinal cord compression. The patient scheduled a second surgery on her spine, which was performed by the second physician approximately one year after her initial operation. The second surgery was a success and eliminated the patient’s pain and discomfort.

The patient filed suit against the initial physician who performed the first spinal surgery, asserting four causes of action: professional negligence, intentional misrepresentation, concealment, and negligent misrepresentation. In her complaint, the patient stated that when she confronted the initial physician about the continuing disc protrusion, he responded that he knew about it and had informed her. However, the patient disputed that she received such information and further alleged that her reliance on the initial physician’s misrepresentation caused her to suffer months of ongoing and unnecessary pain, testing, and treatment. A jury disagreed that the initial physician’s care fell below the applicable standard and found that the physician did not misrepresent or conceal information, thus absolving the initial physician of any liability. An appellate court affirmed the findings and conclusions.

What this means to you: Lessons from these events highlight the importance of corroboration, whether by a supporting colleague or staff, or by appropriate and thorough documentation. This case focused on the patient’s allegation that the initial physician failed to inform her about the outcome of the surgery, in addition to the underlying claim that the surgery was unsuccessful. But the primary dispute was about communication, or lack thereof, and whether the physician concealed the results of medical scans to the patient.

While the patient claimed that the physician never informed her of the continuing protrusion, the physician and a colleague, who had also examined the patient during a follow-up visit and worked with the physician, corroborated that the postsurgical CT scans had been reviewed during the visit. Furthermore, the physician’s colleague noted in the patient’s record that the scan had been reviewed and that at the time it did not show any compression of the spinal cord. While the indentation at the T6-T7 level was not noted in the patient file, the physician’s colleague admitted to seeing it and that in retrospect he should have included some annotation about it.

In this case, the defendant physician’s ability to call his colleague who could testify to the fact that the patient was informed was critical to a successful defense. The further notation in the patient’s record that the scan was reviewed undermined the patient’s claim that she was never informed. Medical records serve a variety of functions, and while the primary function is to ensure that patients receive appropriate and necessary medical treatment, the records also serve as a useful tool in the event of medical malpractice litigation. It is far more difficult for physicians and care providers to assert that information was provided if there is a lack of contemporaneous documentation supporting those assertions.

The patient disputed the accounts of the defendant physician and the physician’s colleague and instead claimed that neither physician informed her about the protrusion and that the initial physician had assured her that everything was fine. However, the patient did not produce any evidence of these events. The patient sought to introduce evidence of other litigation filed against the initial physician, which the plaintiff alleged were relevant for the purpose of proving the physician’s intent and repetitive deceptive conduct because the allegations were similar in nature to the patient’s allegations. The other litigation concerned separate incidents and other patients.

These events demonstrate one of the many important gatekeeping functions that judges and courts serve. While juries are ultimately charged with evaluating and weighing the evidence presented to them, judges determine whether the evidence reaches the jury. A physician’s actions in a particular case are, of course, relevant for a jury to assess, but moving beyond that scope and to the physician’s actions as related to other individuals may not be appropriate to present to the jury.

An additional consideration from the judge’s and jury’s perspective is the fact that unless an emergency exists, patients have the option to evaluate physicians and their practice well before seeking their care. Online data including physician grades, liability history, and patient satisfaction flood the internet. If the patient were aware of the multiple patient complaints and lawsuits filed against the surgeon, she may well have sought the assistance of a different physician. It is common for courts to disallow such evidence involving other patients and unrelated issues which have no bearing on the particular patient and issues present in the specific case at hand.

In this case, the defendant rightfully objected to — and sought to exclude — all such evidence from being presented to the jury on the basis that it would be more prejudicial than substantive. The court ruled in the physician’s favor and excluded the inappropriate evidence. This presents an important lesson for physicians and care providers: A medical malpractice plaintiff may attempt to raise past litigation, including the mere fact that such allegations were raised, in an attempt to prove present liability. However, physicians and care providers should challenge the attempt to present such accusations, as those challenges often will be successful given the inherent unfairness and prejudicial effect.


Appeal decided on Nov. 26, 2018, in the Court of Appeal of the State of California, Case Number B280399; trial decided on Dec. 21, 2016, in the Superior Court of the State of California, Case Number SC110925.