Johnson v. Keiper
| Decision Date | 27 January 2021 |
| Docket Number | A167924 |
| Court | Oregon Court of Appeals |
| Parties | Delmer L. JOHNSON, Plaintiff-Appellant, v. Glenn KEIPER, Jr., M. D.; Keiperspine, PC, an Oregon corporation; and Spine Surgery Center of Eugene, LLC, an Oregon limited liability company, Defendants-Respondents. |
Gary M. Bullock, Portland, argued the cause for appellant. Also on the briefs was Gary M. Bullock and Associates, P.C.
Hillary A. Taylor argued the cause for respondents. Also on the brief was Keating Jones Hughes, P.C.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
This is a medical malpractice action in which plaintiff alleges that defendants’ negligence in performing spinal-fusion surgery and providing post-surgical diagnostics and care led to "foot drop" in his left foot, which is the loss of strength necessary to raise the foot. The trial court granted defendants a directed verdict at trial on all of plaintiff's claims, and plaintiff appeals the general judgment. In four assignments of error, plaintiff contends that the trial court erred in denying his motion to amend his complaint; in excluding testimony by two of his experts—Dr. Dietrich and Dr. Taylor—on the ground that they were not qualified to testify about defendants’ post-surgical standard of care; and in granting the directed verdict. We reject without written discussion plaintiff's assignments of error concerning the motion to amend the complaint and the exclusion of Taylor's testimony. However, on the assignments of error on Dietrich's testimony and the directed verdict, we agree with plaintiff and therefore reverse and remand.
Because we are reviewing both the trial court's ruling on a directed verdict and the evidentiary question of Dietrich's qualifications to testify, we present the facts that apply to each ruling differently. On the directed verdict in favor of defendants, we present the facts in a manner that is most favorable to plaintiff, drawing all reasonable inferences in his favor from the evidence. On the evidentiary ruling, we present the record that the court had before it when making its ruling. See Trees v. Ordonez , 354 Or. 197, 200, 311 P.3d 848 (2013) (); State v. Eatinger , 298 Or. App. 630, 632, 448 P.3d 636 (2019) ().
Plaintiff began receiving treatment in 2013 from defendants—Dr. Keiper and associated entities Keiperspine, PC and Spine Surgery Center of Eugene, LLC—for back pain. Defendants diagnosed lumbar stenosis (a narrowing of the spine that puts pressure on nerves) of the L3-4 and L4-5 vertebrae and sciatica (compression of nerve roots causing back pain). Over time, defendants tried several treatments and surgeries for plaintiff—which included microlaminotomies, a medial facetectomy, and foraminotomies (all of which involve removing portions of the vertebrae to relieve pressure on the spinal nerves) as well as epidural steroid injections—but they were not successful in resolving plaintiff's pain. In 2015, defendants recommended a spinal fusion and the removal of two cysts, which had developed since plaintiff had started his treatment. Plaintiff considered his pain to be intolerable, and he decided to go through with the proposed procedures.
On May 27, 2015, Keiper performed on plaintiff L4-5 microlaminotomies and medial facetectomies, resection of bilateral synovial cysts, and, particularly relevant to this appeal, an operation that fused two of plaintiff's vertebrae with a titanium cage and bilateral pedicle screws.1 Unlike a surgery in which a single incision is made, Keiper operates through two incisions on the sides of the vertebrae. Keiper monitored the surgery using fluoroscopy (X-rays taken during the course of surgery), neuromonitoring, and EMG reports. The pedicle screws were placed by guidewires and a device known as a Jamshidi. During the May 27 surgery, the neuromonitoring alarm went off, and Keiper repositioned the placement of a pedicle screw. He did not note the alarm or the redirection of the pedicle screw in the operative or discharge reports.
When plaintiff awoke from surgery, he did not have the strength to raise his left foot. Plaintiff was told that he had "foot drop," and Peterson, Keiper's physician assistant, reassured plaintiff that the foot drop would soon get better. Plaintiff was given Decadron—a strong anti-inflammatory steroid that rapidly reduces swelling. Plaintiff did not remember noticing improvement after he was given the intravenous steroid, but Keiper noted by chart that there was improvement. Defendants never told plaintiff that the neuromonitoring alarm had gone off or that there was any issue with the placement of the pedicle screw.
After the surgery, plaintiff made several visits to defendants’ office over the next three months to address his foot drop, which had not improved. In the course of those visits, Keiper and Peterson examined plaintiff and ordered X-rays, magnetic resonance imaging (MRI), an electromyelogram (EMG), and nerve conduction velocity testing. Plaintiff was continually told by defendants that there was nothing wrong with the placement of the fusion hardware. Indeed, according to defendants, the placement of the pedicle screws was "excellent," "perfectly placed," and "textbook." In defendants’ view, in light of plaintiff's continued sciatica and foot drop (at 2/5 strength), it was likely that the affected "nerve root is dysfunctional due to manipulation during surgery." In August, plaintiff was insistent in asking if there was more testing to be done, because he did not understand what was causing his condition. At that point, plaintiff's foot was "just dead." Defendants ordered a CT myelogram, and, on August 13, defendants told plaintiff that the pedicle screws needed to be removed and replaced with a clamp but did not explain to him that the CT myelogram showed that the L4 pedicle screw was breaching the L4 vertebra, possibly to the extent that it was affecting the nerve root.
Plaintiff's final appointment with defendants was on August 31. Afterwards, plaintiff decided to get a second opinion. Plaintiff went to another neurosurgeon at OHSU on September 15, but it was not until sometime in October that OHSU received the CT myelogram. The neurosurgeon at OHSU explained to plaintiff that the CT myelogram showed that a pedicle screw had breached the L4 vertebra, and the neurosurgeon recommended removing the screw. On December 9, the earliest that surgery could be scheduled, OHSU surgeons removed the left L4 pedicle screw and rod. Plaintiff's foot drop did not improve.
Plaintiff brought this medical malpractice action against defendants, alleging six specifications of negligence, of which the following four are relevant to the issues on appeal: defendants failed to perform the May 27, 2015, surgery skillfully by incorrectly placing the L4 pedicle screw (allegation (a)); defendants failed to obtain and record appropriate imaging and nerve root monitoring studies to document whether the screw was misplaced and whether the nerve root was damaged at the time of the May 27, 2015, surgery (allegation (b)); defendants failed to inform the patient of the malpositioned screw and fragmented bone and their probable causation of his sciatica and foot drop following the May 27, 2015, surgery, leading to an unreasonable delay in removal of the offending screw (allegation (c)); and defendants failed to provide personal and skilled aftercare following surgery by delegating to a physician assistant key decision-making during follow-up visits after surgery (allegation (f)).2
At trial, Dietrich, a neurosurgeon who was limited by the court about the negligence allegations about which he was qualified to testify, testified about the standard of care concerning allegation (b)—the failure to order appropriate imaging tests in light of plaintiff's foot-drop symptom that presented immediately after surgery—and whether the position of the L4 pedicle screw was in a position to impinge on the L4 nerve. Based on his review of the CT myelogram and plaintiff's foot drop, Dietrich had no doubt that the L4 pedicle screw had breached the medial canal, that it "certainly" affected the L4 nerve, and that it was likely that the L4 pedicle screw affected the L5 nerve root. In sum, with the requisite degree of medical certainty, Dietrich testified that the pedicle screw was responsible for damaging the L4 and L5 nerve roots. He further testified that, the sooner that the source of an injury to a nerve root is removed, the more likely that the injury will abate.
In Dietrich's opinion, not only should defendants have ordered imaging tests when plaintiff's foot drop presented immediately after the May 27 surgery, the tests that were ordered—an X-ray on June 9 and an MRI on June 10—were inadequate to definitively determine whether the pedicle screw was breaching the medial canal. If the foot drop was due to manipulation during surgery, it would be expected that the foot drop would persist for two or three days and then improve gradually as swelling receded. The MRI that was taken was not adequate to ascertain the position of the pedicle screws, mainly because magnetic artifact distorts the image, preventing accurate interpretation of whether the pedicle has been breached by any of the screws. The CT myelogram definitively showed the pedicle-screw breach, and it was below the standard of care to wait until August 13 to ascertain the cause of the foot drop.
Dietrich concluded his testimony by stating that defendants’ failure to obtain appropriate imaging studies at the time of p...
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Stockton v. Mee
...against a plaintiffs claim "is appropriate only when the defendant is entitled to judgment as a matter of law." Johnson v. Keiper, 308 Or.App. 672, 678, 481 P.3d 994 (2021). "The elements of a claim for medical malpractice include: (1) a duty that runs from the defendant to the plaintiff; (......