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Contraindicated Kyphoplasty Surgery Resulting in Paralysis - Rhodes

Filed under Surgical Errors

The Rhodes Case

SHORT SUMMARY

This case involved a neurosurgeon who performed unnecessary and contraindicated spine surgery on a woman – he had an incentive laden contract – which resulted in her paralysis. Notably, in a federal whistle blower lawsuit, one of the neurosurgeon’s partners had accused him of a pattern of performing unnecessary surgeries for financial gain.

FACTS

Mary Margaret Rhoads (“Mrs. Rhoads”) had a history of compression fractures from both 20 years ago (at the L1 level) and 3½ years ago (at the T7 level). She then began experiencing mid-back pain around T7 and saw a neurosurgeon. During that appointment, that physician asked for the opinion of his partner, the Defendant neurosurgeon.

The Defendant neurosurgeon came in, spent a few minutes with Mrs. Rhoads, and recommended that she allow him to perform kyphoplasty surgery at three different levels of her spine (L1, T12, and T7). However, since a kyphoplasty should only be performed on fractures that are less than one year old, Mrs. Rhoads’ health insurer denied approval due to Mrs. Rhoads having “old fractures” per her MRI and history (the Insurance Health Plan policy specifically stated that “Kyphoplasty is contraindicated in patients with compression fractures more than 1 year old.”).

As a result, the Defendant appealed the health insurer’s decision, ordered a bone scan (which is less diagnostic than the MRI already done) to try and justify his surgeries, fought to get approval, and ultimately was successful (it was alleged that the Defendant recommended surgery due to his incentive laden contract, see infra).

Tellingly, to correspond with some minor findings on the bone scan at the T7, L1, and L2 levels, the Defendant sought approval for those levels, even though the surgery was never intended for those exact levels nor was it performed at those exact levels. In other words, the Defendant fraudulently misled the insurance company to gain its approval for his surgeries.

Moving forward, on December 3rd, the Defendant performed three kyphoplasty surgeries on Mrs. Rhoads (Plaintiffs alleged that the surgery itself was performed negligently). Importantly as it applies to the allegations in this case, by performing three kyphoplasty surgeries (recall Mrs. Rhoads only had pain around T7), not only did the Defendant generate three times the RVU billing (discussed below), but he subjected Mrs. Rhoads to three times the risk of a spinal hematoma, paralysis, etc., i.e. exactly what happened in this case.

Following surgery, contrary to how this surgery is advertised by the doctor on the hospital’s website (done on outpatient basis with instant pain relief), Mrs. Rhoads was in severe pain, could not ambulate, could not empty her bladder, etc. As a result, she had to be kept overnight in the hospital. The next day, on December 4th, Mrs. Rhoads’ condition remained extremely poor. Because it was felt that his patient was unsafe to be sent home, Mrs. Rhoads was discharged to a skilled nursing facility in Monroeville (the “Skilled Nursing Facility”).

At the Skilled Nursing Facility, Mrs. Rhoads was under the care of here PCP who was also the medical director of the Facility. There, her condition continued to deteriorate (it was documented that Mrs. Rhoads could not bear her own weight, needed assistance to transfer to a wheelchair, had severe, throbbing pain on her left side associated with nausea, had a 73% oxygen saturation rate, had bilateral extremity weakness, decreased balance, decreased upper extremity strength, pitting edema of her lower extremities from her thighs to her toes, muscle spasms, a guarded condition, and was screaming out in unbearable back pain). Notably, instructions from the Defendant written for the Skilled Nursing Facility instructed them to call the Defendant immediately if any of these signs occurred. He was never called. Finally, after three days, on December 7th, the Medical Director chose to send Mrs. Rhoads to the emergency department at the local hospital instead of the tertiary care hospital where the operation took a place (which was only a few minutes farther away).

At that hospital, Mrs. Rhoads arrived at 5:19 pm and continued to deteriorate further (it was documented that she had severe pain with muscle spasms, 10/10 pain with symptoms coming every 15 minutes in waves, was wailing and crying in pain, had bilateral back pain, nausea, left sided pain light to touch, intractable back pain, hyponatremia, “pain of a neuropathic character possibly from entrapment neuropathy”, became incontinent, and had numbness on the tops of her feet). Despite these symptoms, no caregiver ever attempted to contact the Defendant neurosurgeon or bring Mrs. Rhoads back to the original hospital.

A CT scan of Mrs. Rhoads’ back was taken around 10:00 pm on December 7th. It showed bleeding in the spine; however, it was misread by a resident radiologist.

Finally, after having her legs go numb at 2:00 am on December 8th, an MRI revealed that Mrs. Rhoads was bleeding throughout her spine and had a large hematoma compressing her spinal cord. Mrs. Rhoads was then emergently transferred back to the original hospital after roughly 12 hours at the other hospital.

Now back at the original hospital, the Defendant neurosurgeon performed emergency surgery to evacuate the hematoma and decompress the spinal cord. Tragically, by that point it was too late. As a result, Mrs. Rhoads suffered permanent spinal cord damage. She was then confined to a wheelchair, in constant pain, and essentially paralyzed from the waist down.

THE LAWSUIT

We brought suit against the neurosurgeon, the original hospital, the Skilled Nursing Facility, its Medical Director, and the hospital that Mrs. Rhoads was initially transferred to. THE NEUROSURGEON’S INCENTIVE LADEN CONTRACT

By way of background, Relative Value Units or “RVUs” tell how much money a doctor earns on any given patient and also reveal if the doctor is fraudulently claiming to do more work than is humanly possible in any given year. RVUs are similar to billable hours for a lawyer, e.g. if a lawyer’s billing shows that he or she billed 8,000 hours per year, the lawyer is committing some type of fraud (the same goes for a doctor and RVUs).

A busy neurosurgeon should be billing roughly 12,000 to 15,000 RVUs per year. If a neurosurgeon is claiming 25,000 or 35,000 it can only be done by fraud.

Around the time of the neurosurgeon’s deposition, a prominent local neurosurgeon, Dr. Matthew R. Quigley, had an op-ed article he originally authored for the Allegheny County Medical Society Bulletin republished in the Pittsburgh Post-Gazette titled, “Why this Neurosurgeon Left Pittsburgh: A Healthcare Organization Wanted Me to Work on Commission (Don’t Tempt Me to Betray My Patients)” originally titled “Caveat Emptor” in the ACMS Bulletin). In this chilling article, Dr. Quigley went into detail about how Pittsburgh neurosurgeons have been permitting their incentive based RVU contracts to influence their medical decision making and performing unnecessary surgeries.

Here, the neurosurgeon was deposed and testified, inter alia, that:

He had/has a contract with UPP based on RVUs;

  • Just to obtain his base salary, he has to achieve a certain number of RVUs;
  • Just to obtain his base salary, he is required to perform a certain number of surgeries per year;
  • Different amounts of RVUs get credited to him depending on the type of patient interaction or procedure, e.g. new patients office visits are assigned larger RVUs compared to return patients or post-op visits, surgeries are assigned more RVUs, etc.;
  • In addition to his base salary, he gets bonus pay or “incentive compensation” that is also based on RVU production; and
  • He would have received more RVU credits for performing three kyphoplasty surgeries on Mrs. Rhoads over performing only one kyphoplasty.

Following the neurosurgeon’s deposition, we filed an Amended Complaint alleging, inter alia, that he performed unnecessary and contraindicated spine surgery on the Plaintiff (leaving her in a wheelchair) purely for financial reasons, that he permitted his incentive laden contract to factor into his decision making, and that he permitted non-board certified healthcare providers to perform a majority if not all of this spine surgery without him being present in the operating room while claiming to also be performing spine surgery on another patient at the exact same time.

Following our filing of an Amended Complaint, we learned that a federal “whistleblower” lawsuit had been filed against this neurosurgeon and other neurosurgeons in which they have been accused by their former neurosurgeon partners of committing fraud by placing financial incentives and profit motives over patient safety (due to incentive based RVU contracts) which in turn led to unnecessary surgeries, claims to be in two different operating rooms at one time, allowing residents and physician’s assistants to perform surgeries without their presence, etc. The whistleblower alleged that UPMC neurosurgeons regularly generated in excess of 25,000 RVUs annually, with some exceeding 30,000 and, in certain cases, 50,000 RVUs per year.

Notably, in the instant case, when we alleged that Mrs. Rhoads’ surgery was unnecessary and that the neurosurgeon was allowing his incentive based contract to drive his decision-making, we were unaware of the whistleblower lawsuit as they were previously under seal. The point being that we did not conform our allegations of profit motives and unnecessary surgeries to the federal lawsuit (i.e. the federal lawsuit is simply further proof of the neurosurgeon’s pattern of conduct).

Moreover, despite the neurosurgeon and the hospital being involved in and knowing of the ongoing federal whistleblower lawsuit that was then under seal (again unbeknownst to us), Defense Counsel attempted to have our allegations against the neurosurgeon - placing profit and financial incentives over patient safety - dismissed via preliminary objections by accusing us of bad faith for including such “scandalous, impertinent and immaterial” allegations. The Court ruled in our favor.

Therefore, to prove these allegations against the neurosurgeon, in discovery, we sought: (a) an un-redacted copy of the neurosurgeon’s contract; and (b) information related to his claimed “RVU” production (for example, how many RVUs he claims in the year at issue, the previous year, how many RVUs were generated for Mrs. Rhoads’s surgery, etc.).

The neurosurgeon and hospital refused to turn this information over. The Court assigned this issue to a “Special Master” (a lawyer who knew nothing about medical malpractice) who ruled that the information sought was “too prejudicial” to even be discoverable. Thereafter, the court adopted the Special Master’s ruling without a hearing which essentially granted summary judgment in Defendants’ favor because without the contract and RVU related information, we had no way to prove our allegations.

We were successful however in getting a copy of the operating room schedule for the date that Mrs. Rhoads had her surgeries. It revealed that the neurosurgeon was “double booking” operating rooms and had another complex spine fusion surgery occurring at the exact same time as Mrs. Rhoads’ surgery. Previously, during the neurosurgeon’s deposition, he testified that he remained in Mrs. Rhoads’ operating room during her entire surgery (a resident was assisting him) which has a start and stop time listed in the records. We then requested redacted records of the other patient to see when that surgery began and ended.

The Defense fought tooth and nail and refused to give those records up claiming “privacy” rights of the other patient (even though we asked that all patient identifiers be redacted/removed). The Trial Court agreed with us and ruled that the Defendants must turn the records over.

THE APPEALS

Instead of doing so, the Defendants took an interlocutory appeal (appeal during the pendency of the case) simply to delay the case and the issue (our client was elderly and was in bad health). Typically cases on appeal can be delayed for years.

In a rare move, the Pennsylvania Superior Court granted our Motion to Quash the appeal, ordered the appeal to end, and ordered the Defendants to produce the other patient’s redacted records.

The Defendants then appealed that decision to end the appeal to the Pennsylvania Supreme Court. The Supreme Court ultimately ordered the Superior Court to rule on the issue. After a lengthy delay, the ruling was again in our favor. The Defendants then appealed that decision again to the Pennsylvania Supreme Court. After another lengthy delay, the Supreme Court ruled in our favor and order the Defense to produce those records.

Prior to turning over those records, the Defendants offered a multi-million dollar settlement which our clients accepted to finally end the long, drawn-out litigation.