Court tosses $7M judgment awarded to patient paralyzed after spine injection at ASC

Court tosses $7M judgment awarded to patient paralyzed after spine injection at ASC

https://www.beckersasc.com/asc-news/court-tosses-7m-judgment-awarded-to-patient-paralyzed-after-spine-injection-at-asc.html

The Colorado Court of Appeals reversed a $7 million judgment against Surgery Center at Lone Tree (Colo.) on Oct. 15, saying the ASC should not have been held vicariously liable for a spine surgeon’s alleged malpractice.

Plaintiff Robbin Smith lost all feeling in her lower extremities after receiving “a bilateral S1 L1-L2 transforaminal steroid injection using the particulate corticosteroid Kenalog” at Surgery Center at Lone Tree, according to court documents. Ms. Smith was later diagnosed with bilateral lower extremity paraplegia secondary to spinal infarct/ischemia and is permanently paralyzed below the waist.

She and her husband, Doyle Edward Smith Jr., filed a lawsuit against three defendants: the spine surgeon who performed the epidural, SpineOne Spine & Sport Medical Clinic, and Surgery Center at Lone Tree, where the injection took place.

However, only the claims against the ASC proceeded to trial. Claims against the spine surgeon were settled before trial, and claims against Lone Tree-based SpineOne Spine & Sport Medical Clinic, which is the surgeon’s employer, were dismissed.

During trial, the plaintiffs alleged Surgery Center at Lone Tree had an obligation to either prevent its surgeon’s off-label use of Kenalog, which they believe contributed to Ms. Smith’s paralysis, or ensure Ms. Smith had given her informed consent to its off-label use.

After an eight-day trial, a jury ruled in favor of the Smiths and awarded them $14.9 million in damages. The trial court reduced the amount of the verdict to roughly $7 million. The ASC appealed the jury’s ruling, and the Smiths cross-appealed the reduction in damages.

Citing Colorado’s corporate practice of medicine doctrine, which “prohibits healthcare facilities from controlling a physician’s independent professional judgment regarding the practice of medicine, diagnosis or treatment,” the Colorado Court of Appeals reversed the trial court’s judgment and remanded the case for judgment in favor of Surgery Center at Lone Tree.

“We conclude that the trial court should have dismissed the corporate negligence and uninformed consent claims against [Surgery Center at Lone Tree] as a matter of law because, under the corporate practice of medicine doctrine, [Surgery Center at Lone Tree] was not vicariously liable for any malpractice” by the operating surgeon, nor was the ASC obligated to assume any medical responsibilities the surgeon failed to fulfill, the Colorado Court of Appeals said.

The court also dismissed the Smiths’ claim for negligence per se, on the grounds that state licensing and federal Medicare regulations weren’t enacted primarily for public safety reasons.

4 Responses

  1. Let me guess – these were Republican appointed/approved judges, amirite? Thought so. Vote Blue 2020, your life could literally depend on it!

    • According to this https://www.courts.state.co.us/Courts/Court_Of_Appeals/Judges.cfm The Colorado Court of Appeals, located in Denver, has 22 judges. One is chief judge. The court sits in panels of three to hear cases. Assignments to these panels are made by the chief judge. Each judge serves as a liaison between a judicial district and the Court of Appeals, and their judicial district liaison assignments are also listed below… Are you sure that all 22 judges were appointed by a Republican President ?

  2. Why does this not surprise me? ESI’s are BIG business as judged by all of the comments that were received during the open comment period when notice went up about the CDC guideline changes. There were so many interventional physicians commenting, completely demonizing opioids and emphasizing how ESI’s are safe and “non-addictive”. No physician mentioned how expensive they are, or how they really don’t help relative to their cost.
    It would figure that a chronic pain patient trying to get justice would have this happen. It seems that when it has anything to do with chronic pain, evil will always win.

  3. I have to say, well I will not say what im thinking right after reading this dribble by the courts…I no me, I will say something I might regret.With that being said, They had the chance to sue 3 different entities, i guess is the “word?” and they couldnt hold anyone accountable for paralyzing this woman?
    I hope they will continue the fight against that ruling..

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