By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services (2004-2013)

California Hospital Medical Center

Los Angeles

Elena N. Sandell, JD

UCLA School of Law, 2018

News: A court of appeals reversed a directed verdict in favor of an orthopedic surgeon who botched a spinal fusion surgery, causing the plaintiff permanent nerve damage and decreased mobility. The trial court had found in favor of the defendant physician, holding the plaintiff’s expert did not provide adequate testimony as to the applicable standard of care. The court of appeals reversed the decision, finding that although the plaintiff’s expert did not provide a clear definition of the standard of care, he did demonstrate sufficient familiarity with the standard to opine in the case. In fact, the court noted the expert had extensive experience as a neurosurgeon and adequately testified as to what he believed the proper course of treatment would have been for the patient. Further, the expert identified several breaches in the patient’s care, and noted the defendant physician failed to perform a bone density test before deciding if a spinal fusion would be the best option for his patient.

Background: In April 2014, a physician performed spinal fusion of the lumbar vertebrae, a procedure in which adjacent vertebrae are fixated and fastened together. This procedure can be performed by placing a bone graft and reinforcing the graft with screws, rods, or bone marrow. Depending on the patient’s condition, a surgeon will select the most appropriate method of fastening the graft.

In this case, defendant physician used screws. Specifically, a pedicle screw was inserted in the ala of her sacrum, and the screw had pulled out completely. In fact, the plaintiff’s expert testified the surgeon had already broken off the pedicle before placing it in the ala of the sacrum. According to the expert, this already constituted a breach in the standard of care because the physician had adamaged the patient’s anatomy. The expert also opined that although the difference between the pedicle and the sacral ala is minimal in terms of thickness, there is a significant anatomical difference whereby the sacral ala is a slightly movable joint in relation to the mechanics of the pelvis. The slight but measurable mobility of the joint still would result in unstable fixation. Thus, the surgeon should have used a different method to reinforce the bone graft.

Later, the patient underwent a second operation, known as a revision procedure, to address certain complications that occurred during the first surgery. After the revision procedure, the patient suffered from foot drop, a condition in which a person cannot lift the front part of their foot, causing it to drag, and in severe cases, requiring a brace to maintain the foot in its normal position. The patient also continued to experience pain in her lower back, effectively rendering the surgeries a failure.

In August 2017, the plaintiff filed a complaint against defendant physician, alleging he had departed from the standard of care in performing the surgery. The medical review panel that examined the patient’s hospital records and evaluated the physician’s conduct found the physician had not violated the standard of care. However, the plaintiff’s medical expert — a surgeon who had performed more than 12,000 spine procedures, including 150 spine fusions — testified that he disagreed with the panel’s conclusions. In particular, the expert noted the patient’s history of osteoarthritis and osteoporosis, among other conditions, and noted the surgeon failed to perform a bone density test before deciding whether to proceed with the surgery. Nevertheless, the trial court found the plaintiff’s expert failed to adequately define the proper standard of care, and returned a verdict in favor of defendants. On appeal, the court reviewed the expert’s testimony and reversed the lower court’s decision.

What this means to you: When reviewing the expert’s testimony, the court of appeals focused on whether the plaintiff’s expert provided an adequate definition of standard of care. In the disputed remark, the expert stated “there is no such thing as standard of care except what the individual doctor thinks it is.” Further, defendant’s counsel noted that during the expert’s deposition, he stated 40% to 50% of spinal surgeries result in negative outcomes, and that a negative outcome in and of itself does not necessarily indicate bad medicine. These statements were used by the defendant to question the expert’s testimony and conclusion that defendant physician breached the applicable standard of care.

The court of appeals began its review by analyzing the expert’s credentials and his ability to provide expert testimony. The court found the physician’s educational background and years of practice as a spinal surgeon, paired with his extensive experience performing spinal procedures and fusions, qualified him as a reputable expert. Regarding the doctor’s statement on the applicable standard of care, the court considered the context and other remarks made by the physician. Although the expert repeatedly opined that no written standard of care exists and the term is somewhat arbitrary, he did provide a detailed description of the mistakes made during the procedure and the proper course of action the defendant should have taken. Specifically, the expert noted the patient’s chart and medical records lacked information, and the presurgery workup was “sparse.” Most notably, the surgeon did not order a bone density test for the patient, who took vitamin D2 as a bone supplement. This should have raised a red flag and induced the physician to verify if the patient had osteoporosis.

Further, the expert held the choice of performing a spinal fusion was controversial in and of itself. An alternative procedure, a decompressive laminectomy, would have been preferable. The expert criticized defendant’s choice to perform the surgery using pedicle screws. In fact, the witness stated the surgeon should have performed a bone graft without hardware, using bone marrow to strengthen the graft.

After a thorough review of the trial records, the court of appeals found the doctor’s testimony was sufficient in establishing the applicable standard of care and the breach thereof. In fact, although the physician’s remarks were “imprecise,” they did show sufficient familiarity with the applicable standard. The appeals court especially relied on the expert’s statement that a “prudent surgeon” would have performed a bone density test and that a decompressive laminectomy would have been the proper procedure given the patient’s condition and background. In addition, the expert established with sufficient certainty the injuries plaintiff sustained were caused by nerve damage from the surgery. Thus, the court of appeals found the trial court erred in granting defendant’s directed verdict and reversed the decision, remanding the case to the lower court.

Although the plaintiff’s expert provided some controversial comments on the standard of care, it is likely that, if given his well-established expertise, a proper analysis and explanation of his testimony will, at the very least, increase the plaintiff’s odds of obtaining a favorable verdict. There always is a standard of care, especially for relatively common procedures. The standard may not exist in written form. Instead, it is considered to be what a reasonable physician would do in similar circumstances within the same community. Assuming the patient is older than age 55 years and female, osteoporosis must be considered. Orthopedic hardware, and screws in particular, occasionally do either break and remain irretrievable, or damage bone and surrounding tissue. They can even cause allergic reactions due to the metals. It could be deemed more reasonable to use hardware if other alternative treatments were contraindicated.


  • Decided Dec. 18, 2020, Court of Appeals of Indiana, Case No. 20A-CT-571.