Michael J. Sacopulos, Esq.
Several weeks ago, the Supreme Court of Missouri reinstated the wrongful death claim against a spine surgeon. The case involves a patient that committed suicide allegedly because of the pain cause by spinal surgery. The patient first underwent surgery in January 2005, to correct the curvature of his spine. Unhappy with the results of the procedure, the patient and his wife filed a medical malpractice action in July of 2005. In March of 2006, the patient committed suicide, leaving his wife and daughter to amend the medical malpractice action into a wrongful death action.
During depositions, a treating psychiatrist of the patient stated that suicide was not a rational choice and thus was not a voluntary act. This statement had legal significance. If the suicide was deemed to be possibly voluntarily, a jury could consider it independent, intervening act and go on to conclude that the spinal surgeon was not responsible for the patient’s death. The trial court judge found that the psychiatrist’s statement on suicide was a personal opinion and not a scientific conclusion and thus blocked the testimony. The patient’s family appealed.
The Supreme Court of Missouri reasoned that because the patient is now deceased, it is impossible to “provide direct evidence as to why he acted as he did, an expert witness may be used to interpret the facts and data relating to his injury and to supply the causal link from the injury to his death.” With that, the wrongful death action was reinstated and the case now awaits trial. This case has currently been in litigation for approximately six years.
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Claims are frequently re-instated by the courts. That’s one of the reasons why (early) dismissal is not always a reason to celebrate. I see this case as relying a lot on “previous efforts” at conservative treatment, as well as length of time the surgeon treated the patient…prior to doing the surgery.
It is possible to develop a “numerical” defense of the surgery choice. What I mean by this is to thoroughly trace the medical/surgical charts and collect point values for conservative and alternative treatments (done) prior to the surgery. This is called “Digital Chart Audit(TM)”. If you have a large number of points, then the jury might side with the spinal surgeon instead of the dead plaintiff.
Another issue is the actual operation, and the “incompetency” of its performance. This is more difficult for plaintiff to prove…because the presence of pain is not always an indicator of incompetence or lack of standard of care. And the patient is dead, so he can’t testify.
Spine surgery patients sometimes take large quantities of narcotics, in particular hydrocodone, which can (itself) lead to depression, severe constipation and other side effects. Defense needs to find out what the patient was taking, including those medications the treating psychiatrist provided. The psychiatrist (in presenting conflicting testimony) may be trying to protect him/herself…by agreeing with plaintiff’s attorney. The suicide may be a sequela of the meds the psychiatrist was providing…especially mixing with the other drugs the patient was taking prior to the suicide.
The case should be carefully evaluated.
1. If there are a large number of “points” of Digital Chart Audit(TM) showing detailed and excellent conservative care (including by other physicians besides the spinal surgeon)
2. If the psychiatrist over-medicated the patient with psycho-trophic drugs that may have interracted badly with the narcotics
3. If the patient had a prior history of depression and psychiatric problems prior to the operation and suicide…
Then…the case could be successfully defended. If not, an approach to settlement should be considered. If you are interested you can learn about DCA (Digital Chart Audit(TM) here: http://hierarchieschartaudit.homestead.com/