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Herbert and Tomasik Obtain "Not Guilty" Verdict in DuPage County

06/27/2019
Featuring Scott A. Herbert and Thomas J. Tomasik

Attorneys, Scott Herbert and TJ Tomasik, successfully defended an orthopedic spine surgeon and a multi-specialty physician group in a case brought by a 71-year old DuPage County woman.

In the Summer of 2013, the plaintiff underwent an L4-L5 diskectomy, decompression, and fusion of the lumbar spine performed by the defendant surgeon. During the surgery, surgical screws were only placed on the left side of the plaintiff’s spine, after it was found that her bones were too osteoporotic on the right side for any screws to be placed. When the plaintiff woke up from surgery, she complained of having numbness and tingling below her knees in both legs, which she claimed she did not have prior to surgery. A CT scan was ordered and demonstrated one of the screws on the left had breached the pedicle bone of the vertebra by 6 millimeters into the large psoas muscle, and the other screw also breached the bone in a negligible amount.

The plaintiff continued to have the bilateral numbness and tingling after the surgery and sought second and third opinions from other orthopedic spine surgeons as to the cause. She then ultimately had the screws removed by one of these surgeons in the late Fall of 2014.  After the surgery, she still complained of the bilateral numbness and tingling, which was found to likely be a permanent condition. 

At trial, the plaintiff argued that the left sided screws were irritating/impinging on the spinal nerve roots thus resulting in the plaintiff’s symptoms. Plaintiff argued that the screws should have been removed once the breaches of the bone by the screws were observed on the CT scan, and the plaintiff complained of new neurologic deficits. The plaintiff further argued that had the screws been removed, her symptoms would not have been permanent. Additionally, at trial, the plaintiff called a treating orthopedic spine surgeon and a treating neurosurgeon who both opined that the plaintiff’s complaints were due to the malpositioned screws placed by the defendant surgeon. 

The defense argued that because the screws were only placed on the left side of the plaintiff’s spine, the screws could not be causing the symptoms that were bilateral in nature. For that to happen, screws would have had to been on the left and the right side. Accordingly, the defense contended that plaintiff’s symptoms were a known complication of spine surgery and were not due to any negligence by the surgeon. 

After only 32 minutes of deliberations, the jury returned a verdict for the defense.