Medical malpractice challenges prevail

A Farmington-area doctor has won a defense verdict in a medical malpractice lawsuit challenging his competency in the use of an innovative spinal fusion device.

The victory was the fourth out of five lawsuits that had been tried against the doctor over the use of the device, the BAK Interbody Fusion System, which involves the installation of metal cylinders between vertebrae to restore the disk space to its original height.

The plaintiffs in the lawsuits claimed that the surgeon, Dr. Walter Boardwine, had not received adequate training in the device, had performed the device in cases where it was not indicated, and had been driven by financial motives to perform the surgery. They also claimed that he had guaranteed that the surgery would be successful.

In addition, the plaintiffs sought to bundle the cases into a single trial in order to create a cumulative impression of the doctor's alleged incompetence.

The defense argued successfully that the cases should be tried separately, and won jury verdicts outright in three of the five cases using a variety of defenses, including that he had properly installed the device, and that the medical problems suffered by the patients were not caused by the surgery.

In another of the cases, the parties agreed to a confidential settlement just before the jury returned a defense verdict. And in a final case, where the plaintiff argued that the doctor had been overly aggressive and had performed the procedure incorrectly, the jury returned a plaintiff's verdict of $548,000.

Variety of challenges

Philip L. Willman of St. Louis, who represented the doctor in the cases, said that the series of trials presented a variety of challenges as the plaintiffs altered the themes of the cases and probed for weaknesses.

In some of the cases, they stressed the actual way he performed the surgery, in others a financial motive, and in all of them what they said was his lack of training in the device, Willman said.

And although the cases had been unbundled, they also tried in various ways to bring all of the claims together, especially by arguing that he had made guarantees that the surgery would produce a successful outcome. So we had to take steps to keep the cases separate in order to defeat any attempt to pull them back together.

The key to victory in the cases won by the doctor was expert testimony that the surgery had been appropriate given each patient's previous condition and treatment history, and that subsequent problems had another cause, he said.

Steve Meyerkord of St. Louis, who represented the plaintiffs, noted that almost all of the jurors with a medical background, such as nurses, medical-office managers and laboratory technicians, had voted with the plaintiffs, which he said showed the strength of their argument that the doctor lacked the training to do the surgery.

These are not the kind of jurors you would think would be really sympathetic to a medical-malpractice lawsuit, he said. But they know the level of training of the doctors in their own offices or that they deal with, and they knew that this guy did not have the proper training for this kind of delicate, dangerous surgery.

Meyerkord also noted that many jurors he talked to appeared not to understand the burden of proof required of plaintiffs in civil cases.

Some jurors I spoke to said, 'I think you made some good points, but I was not absolutely convinced that it was medical malpractice,' he said. But that's not our burden, to 'absolutely convince' the jury.

Especially in St. Louis County, you've got jurors with their own burden-of-proof standard, a kind of in-born bias in favor of doctors.

The most recent case involved a 65-year-old plaintiff, Ruby Irwin, who had a significant history of back pain and problems.

Surgery not an issue

There was no dispute in the case as to whether Irwin was in need of spinal fusion surgery, and the use of the BAK device was clearly appropriate, Willman said.

But in Irwin's case, the screws anchoring the inserts to the bone managed to back out after the initial operation, a development which Willman said is a known complication of the surgery.

Boardwine then performed a second operation to remove the inserts and implant a new pair. But that pair also backed out, which led to a third operation.

Ultimately, Irwin developed foot drop and was only able to move about in a wheelchair, Willman said.

She sued Boardwine, charging that he had done more surgery than was needed, and had improperly removed bone when taking out the failed inserts and implanting the new ones.

But Boardwine claimed that he had adhered to the standard of care, that the screws holding the inserts in place do back out in some cases, and that the screws had probably done so in her case because of the prior poor condition of the bone in her spine.

In order to safely remove the devices, he had to remove some bone from the spine, which may have led to some instability there, Willman said. But that was just a result of him doing what was required in the case.

The most significant of the cases, Willman said, was the first, involving a 35-year-old man who had a history of back pain, but who argued at trial that spinal fusion surgery in his case had not been needed.

Second surgery

The theme of that first case was that Boardwine, though not fully trained or experienced in the use of the BAK device, was eager to use them, too eager in fact, he said.

After the surgery, the man developed a dural tear, a tear in the covering of the spine. He later received spinal surgery from a second surgeon, after which he developed arachnoiditis, an inflammation in the covering of the nerves.

As a result of that condition, he was in a lot of pain, Willman said, and also was forced to walk with a cane.

At trial, the man argued that Boardwine had done more surgery than was needed in implanting the BAK device, Willman said.

He also tried to bring in the claim that Boardwine had guaranteed the success of the surgery, partly in the hope that the judge would allow the pending plaintiffs to testify that he had also made guarantees to them.

They wanted to bring the other plaintiffs into the case, and the claim of guarantee was going to be the way to do it, he said.

But the court did not allow the other plaintiffs to testify on the claim. Willman then made extensive use of a detailed, three- page consent form that had been signed by the plaintiff that clearly said that no outcome could be guaranteed.

The defense also argued vigorously that spinal-fusion surgery and use of the BAK device were strongly indicated given the plaintiff's history of back pain and spinal instability, and given the failure of more conservative treatment.

And the plaintiff's patient history also presented the clear lines of a causality defense, Willman noted. The plaintiff in that case didn't develop his problems until after the second surgery, by another doctor, he said. We didn't argue that the other surgeon did anything wrong, but we did argue that the plaintiff's complications were caused by that surgery rather than the surgery performed by Boardwine.

The parties settled that case with a hi-lo agreement just before the jury returned a defense verdict, Willman said.

Financial motive charged

The case lost by by Boardwine involved an elderly man who claimed that he lost some of his ability to move his leg, and needed to walk with a cane, as a result of Boardwine's negligence, and that Boardwine had improperly performed the operation.

The plaintiff also argued that Boardwine had a financial motive in the case, an argument that jurors later told Willman had not swayed them.

But what did convince them was the argument that Boardwine should not have taken a posterior approach in installing the devices in the plaintiff's case, Willman said.

The jurors were left doubting Boardwine because none of our experts was able to say that they had ever done the surgery that way themselves, he said. That bothered the jury, even though the experts said that they didn't think it was improper to do it that way.

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