Doctor wins failure-to-diagnose case

In April 1999, the infant plaintiff Katherine Genevieve Feldmann, then age 13, was diagnosed with scoliosis. She was evaluated by a pediatric orthopedic surgeon at the University of Virginia who determined that she had an idiopathic scoliosis (i.e. a scoliosis with no known cause). He recommended that she undergo bracing but also instructed her and her mother that surgery would probably be necessary.

The plaintiff and her family rejected the recommendation for conservative bracing treatment and instead visited with the defendant for a second opinion. After examining the patient, performing a neurological examination and reviewing the radiographic studies, the defendant determined that the patient had idiopathic scoliosis and was a candidate for surgical correction of the curvature.

Surgical correction of the scoliosis was performed in August 1999 without complication. Post-operatively, the patient was active and had no complaints. However, within two years she developed re-curvature albeit without any associated neurological symptoms. The defendant attributed the re-curvature to “crankshafting” due to an adolescent growth spurt and recommended further surgical correction only after the patient’s adolescent growth was completed. He instructed the patient and her family that she did not need to return for an additional two years.

The patient and her family thereafter consulted a second UVA pediatric orthopedic surgeon who, confirmed the re-curvature due to crankshafting and noted that additional surgery would be required.

Approximately three years after the initial surgery, the patient sought treatment from two orthopedic surgeons in New York City. One of these, during his neurological examination, identified a subtle neurological deficit in one of the patient’s lower extremities. Thereafter, an MRI identified both a syrinx and an Arnold Chiari malformation, abnormalities of the spinal cord which are associated with scoliosis.

Thereafter the patient underwent both neurological surgery to correct her CNS abnormalities and orthopedic surgery to correct her curvature.

At trial, plaintiff contended that the defendant should have identified her CNS abnormalities and failed to do so because he failed to conduct the proper neurologic tests. Defendant testified that his habit and practice included performing the tests and although he had no specific recollection of the patient’s examination, explained that his notes conformed to his practice for reporting examinations that were normal.

This testimony was credible in light of the fact that several other physicians who examined the plaintiff both before and after the defendant’s examination and care similarly failed to detect any neurologic deficit. Indeed even the orthopedic surgeon who detected the neurologic symptoms believed that the scoliosis was originally an idiopathic one.

Type of Action: Medical Malpractice

Name of Case: Feldmann v. MCV Associated Physicians, d/b/a MCV Physicians, and Jay Nogi, M.D.

Court/ Case No.: Circuit Court for the City of Richmond/Case No.: LT-2094

Alleged Injuries: Plaintiff alleged that the defendant, a pediatric orthopedic surgeon, failed to rule out central nervous system abnormalities (Arnold-Chiari malformation and syringomylia) as the cause of her pre-adolescent scoliosis prior to performing corrective surgery for it. The plaintiff asserted that the defendant should have identified a neurogenic cause prior to the corrective surgery, and certainly should have done so after the surgery when her curvature re-occurred.

Specifically, plaintiff complained that the defendant did not perform an adequate pre-operative neurological examination or order MRIs of her spine, head, or brain. Further, she alleged that he failed to appropriately follow her post-operatively, including inappropriately instructing her at one post-operative visit, that she did not need to return for an appointment until two years later.

The plaintiff complained that, as a result of the defendant’s failure to identify the neurogenic cause of her scoliosis, she underwent unnecessary surgeries and experienced more scoliosis than would have been the case otherwise.

Trial before: Circuit Court for the City of Richmond

Name of Judge: Judge Melvin Hughes

Special Damages: $215,000

Verdict or Settlement: Defense verdict

Date of Verdict or Settlement: July 27, 2006

Demand: $1.5 million

Highest offer: 0

Defendants’ Experts: Ian M. Wattenmaker, M.D. (orthopaedic surgeon/spine specialist); Douglas G. Armonstrong, M.D. (pediatric orthopaedic surgeon); Neal J. Naff, M.D. (neurosurgeon)

Plaintiff’s Experts: Christopher I. Shaffrey, M.D. (orthopaedic surgeon/neurosurgeon); Richard I. Ulin, M.D. (orthopaedic surgeon); Alan Rothman, M.D. (neurosurgeon)

Attorneys for Defendants: Kathleen M. McCauley and Charles M. Allen, Glen Allen

[06-T-134]