Reinert v. Heller, 091421 WACA, 37081-0-III

CourtCourt of Appeals of Washington
JudgeWE CONCUR: Siddoway, A.C.J., Lawrence-Berrey, J.
Writing for the CourtFEARING, J.
PartiesARTIE LEN REINERT, JR AND CONSUELA LEE REINERT, Appellant, v. ALLEN C. HELLER, M.D. And STEPHANIE A. HELLER, husband and wife, and the martial community composed thereof; ROCKWOOD CLINIC, P.S.; ROCKWOOD NEUROSURGERY AND SPINE CENTER; DEACONESS HOSPITAL; and SPOKANE WASHINGTON HOSPITAL COMPANY, LLC, and DOES 1-10, Respondents.
Docket Number37081-0-III

ARTIE LEN REINERT, JR AND CONSUELA LEE REINERT, Appellant,

v.

ALLEN C. HELLER, M.D. And STEPHANIE A. HELLER, husband and wife, and the martial community composed thereof; ROCKWOOD CLINIC, P.S.; ROCKWOOD NEUROSURGERY AND SPINE CENTER; DEACONESS HOSPITAL; and SPOKANE WASHINGTON HOSPITAL COMPANY, LLC, and DOES 1-10, Respondents.

No. 37081-0-III

Court of Appeals of Washington, Division 3

September 14, 2021

UNPUBLISHED OPINION

FEARING, J.

Neurosurgeon Allen Heller performed a discectomy on Artie Reinert's C5-6 cervical spine level when Reinert and Heller intended for Dr. Heller to perform the procedure at the C6-7 level. After discovering the mistake, Dr. Heller returned Reinert to the operating room two days later and performed the surgery at the C6-7 level. Plaintiff Artie Reinert appeals from an adverse verdict in a medical malpractice lawsuit against Allen Heller. Reinert assigns error to numerous evidentiary rulings of the trial court. Because the trial court did not abuse its discretion in any of its rulings, we affirm the judgment entered in favor of defendant Dr. Heller.

FACTS

Artie and Consuela Reinert sued Allen Heller, M.D., and Dr. Heller's employer, Rockwood Clinic, for an alleged breach of a physician's standard of care during an anterior cervical discectomy fusion (ACDF) that Heller performed on Artie Reinert in October 2012. We refer to the plaintiffs collectively as Artie Reinert, and we refer to the defendants collectively as Dr. Allen Heller or Heller. A discectomy removes the damaged portion of a herniated disc in the spine. The anterior nature of Artie Reinert's surgery looms important in this dispute. The patient lies prone on his back. For an anterior cervical discectomy, the surgeon performs an incision through the throat, rather than through the back of the neck.

Artie Reinert suffered a disc herniation at level C6-7 of his cervical spine. A herniation occurs when the soft, central portion of the intervertebral disc bulges beyond the torn, hard outer ring of the disc. Reinert's herniated disc pressed on a nearby nerve. Reinert also experienced a disc bulge and bone spur at the C5-6 disc level.

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Artie Reinert consulted with Dr. Allen Heller, a neurological surgeon, and, during initial conversations, the two discussed surgery at the C6-7 level and the C5-6 level of the spine. The physician and patient decided, however, to treat only level C6-7. Dr. Heller advised that surgery on the C6-7 level presented an urgent medical necessity due to the resulting compression on a spinal cord nerve. The large disc herniation at C6-7, if left untreated, would worsen and possibly result in paralysis. Dr. Heller did not then consider surgery on level C5-6 a medical necessity. Heller scheduled an ACDF, a common procedure, at the C6-7 level.

When performing a discectomy, the surgeon must locate the targeted disc. The cervical spine consists of seven vertebrae. Most of these vertebrae consist of square blocks stacked on one another. The first cervical vertebrae, the C1, bears the unique shape of a ring sitting on top of the C2 vertebrae. C2 also has a unique appearance. The C2 vertebrae is a square block but with a thumb-like appendage. When locating a lower level of the cervical spine during a discectomy, surgeons will often first locate levels C1 and C2, due to their unique structures, and then count down to the level sought. The C6-7 level is located toward the bottom of the cervical spine.

Neurosurgeons also employ a portable x-ray machine called a C-arm fluoroscopy machine (C-Arm) to locate the ruptured disc for a discectomy. Fluoroscopy shows a continuous X-ray image on a monitor, much like an X-ray movie. A radiology technician takes images of the cervical spine for review by the surgeon. The C-Arm rotates in an arc in order to x-ray the spine from various angles.

(Image Omitted)

On October 2, 2012, Dr. Allen Heller proceeded with an ACDF on Artie Reinert's C6-7 level. Dr. Heller positioned Reinert on his back on the operating table. He extended Reinert's neck so that his chin pointed toward the ceiling. Heller then endeavored to locate the targeted level.

During Artie Reinert's surgery, Dr. Allen Heller used the C-Arm to obtain a lateral fluoroscope view. To obtain that view, the radiology technician positions the C-Arm to shoot beams from left to right. A lateral x-ray permits a surgeon to view isolated levels of the vertebrae and disc space. According to Dr. Heller, on October 2, he also sought a different view, called an anterior posterior (AP) view, or straight up and down view. He did not save images from this view, however. The AP view often provides unreliable and distorted images causing difficulty in distinguishing various vertebral bodies. During trial, Dr. Heller opined that a lateral fluoroscopic image with the use of a metallic marker affords the most reliable view for locating a disc level.

The position of the patient's shoulders can complicate locating level C6-7 with use of the C-Arm fluoroscopy machine. The patient may raise his shoulders or one shoulder may be higher than the other, both of which occurrences cause a darkened area on the x-ray, preventing a physician from clearly identifying the various spinal discs.

During Artie Reinert's ACDF, Reinert's shoulders rode high. Dr. Allen Heller employed different techniques in order to find, with the C-Arm, the lower levels of Reinert's spine. Dr. Heller first taped, with robust cloth tape, Reinert's shoulders to the operating table. Despite the taping, the x-ray showed the cervical spine only to the C3-4 level. Below this level, the image appeared black. Dr. Heller then shot still images at various angles and different planes with the C-Arm machine. The still images did not lead to a clearer view of the lower cervical spine. Heller next attempted to trick the C-Arm. He taped bags of saline fluid to the side of Reinert's neck in order to equal the density of the shoulders. This technique did not improve the image of Reinert's lower cervical spine.

Dr. Allen Heller tried a fourth technique by placing a metallic object on Artie Reinert's throat where he estimated he would cut his incision for level C6-7. Dr. Heller incised the spot and dissected down to the spinal column. He inserted a spinal needle into the immediate disc. He did not know the level at which he placed the needle because the C-Arm revealed only blackness. Heller then began internal counting. He took a "peanut," a blunt-tipped long metallic clamp and ran the peanut up the spinal column as far as he could. Another C-arm still shot revealed that the tip of the peanut sat at level C3-4. Heller then palpated down the front of the spine and counted the cervical vertebrae to the spot he concluded was level C6-7.

A normal healthy spine, without degenerative wear-and-tear, yields predictable contour when the neurosurgeon counts cervical spine levels. The bones feel like valleys and the intervertebral discs feel like peaks. When Dr. Allen Heller counted down Artie Reinert's spine, Heller felt one peak, then a valley, followed by another peak. He determined each peak to be a new bone or cervical level.

Dr. Allen Heller performed the ACDF at the level he counted to be C6-7. According to his trial testimony, he possessed 99 percent certainty that he had reached the correct disc level.

After Artie Reinert's surgery, Dr. Allen Heller ordered a CT scan to confirm that he performed the surgery at the correct location. The scan revealed that Dr. Heller had performed the ACDF on level C5-6. Heller had misinterpreted multiple peaks during his palpation. At trial, Heller attributed the miscounting to bone spurs and other disc bulges in Reinert's cervical spine. Dr. Heller informed Reinert, while Reinert lay in recovery, of the mistake. Reinert responded that they had discussed conducting the procedure on the C5-6 level anyway.

Two days later, on October 4, 2012, Dr. Allen Heller performed the ACDF procedure on level C6-7. He easily found the correct spine level because of the implant at the C5-6 level remaining from the earlier surgery.

During the second operation, Dr. Allen Heller noticed a portion of the large disc herniation at level C6-7 pressing on the spinal cord protective membrane, known as the dura mater (dura). A piece of the disc herniation adhered to the dura. In removing the displaced piece of disc, Dr. Heller tore a hole in the dura, which caused spinal fluid to leak. A dural tear during surgery is rare. When the surgeon performs the discectomy in the anterior position, the surgeon cannot sew the dura shut, because no needle is small enough to permit a suture. Therefore, Dr. Heller attached patch material, either some of Artie Reinert's own muscle or an artificial substance, to patch the hole. He deposited the material and used glue to seal the tear. After patching the dural leak, Heller completed the surgery. Reinert went home the next day, which is common following an ACDF, even with a patched dural tear.

On October 9, 2012, Artie Reinert returned to the hospital emergency room. Imaging showed a bulge under the location of the C6-7 incision cite. The seal on the dura had failed to hold. Dr. Allen Heller admitted Reinert to the hospital on October 9 and, on October 11, Heller performed a third surgery on Reinert to repair the tear. In order to monitor the October 11 repair, Reinert stayed in the hospital until October 18, five of which days he recuperated in the intensive care unit.

PROCEDURE

Artie Reinert filed suit against Dr. Allen Heller and his employer for negligently performing the first ACDF on the wrong spinal level on October 2, 2012. Reinert claimed that Dr. Allen Heller failed to follow the accepted standard of care when...

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