Complaint: Pamela Hay v. Atlanta Brain & Spine Care, et al
In the State Court of DeKalb County
State of Georgia
PAMELA A. HAY
Plaintiff
— versus —
ROGER H. FRANKEL, MD
STEVEN D. WRAY, MD
DAVID M. BENGLIS, MD
ATLANTA BRAIN AND SPINE CARE, P.C.
JOHN/JANE DOE 1-10,
Defendants
CIVIL ACTION
FILE NO. ___________
JURY TRIAL DEMANDED
Plaintiff’s Complaint for Damages
Nature of the Action
1. This medical malpractice action arises out of medical services negligently performed on Pamela Hay on November 15, 2018, and in the days, weeks, and months thereafter.
2. Pursuant to OCGA § 9-11-9.1, the Affidavit of Kalman Blumberg, MD is attached hereto. This Complaint incorporates the opinions and factual allegations contained there.
3. As used in this Complaint, the phrase “standard of care” means that degree of care and skill ordinarily employed by the medical profession generally under similar conditions and like circumstances as pertained to the Defendant’s actions under discussion.
Parties, Jurisdiction, and Venue[1]
4. Pamela A. Hay is a citizen of Georgia.
5. Defendant Atlanta Brain and Spine Care, P.C. (“ABS”) is a Georgia Professional Corporation. Registered Agent Name: C T Corporation System. Physical Address: 289 S Culver St, Lawrenceville, GA, 30046-4805. County: Gwinnett.
6. ABS is subject to the personal jurisdiction of this Court.
7. ABS is subject to the subject-matter jurisdiction of this Court in this case.
8. ABS has been properly served with this Complaint.
9. ABS has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
10. Pursuant to OCGA 9-10-31, ABS is subject to venue in this Court because one of their co-defendants is subject to venue here.
11. At all relevant times, ABS was the employer or other principal of one or more of the following: Roger Frankel, MD, Steven Wray, MD, David Benglis, MD.
12. However, if any other entity was a principal of those individuals, each such entity is hereby on notice that but for a mistake concerning the identity of the proper party, the action would have been brought against it.
13. Defendant Roger H. Frankel, MD, is a citizen of Georgia, residing in DeKalb County. He may be served with process at his residence: 1126 GOODWIN RD NE, ATLANTA, GA 30324-2716 (DEKALB COUNTY).
14. Dr. Frankel is subject to the personal jurisdiction of this Court.
15. Dr. Frankel is subject to the subject-matter jurisdiction of this Court in this case.
16. Dr. Frankel has been properly served with this Complaint.
17. Dr. Frankel has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
18. Dr. Frankel is subject to venue in this Court because he lives in this County.
19. At all times relevant to this Complaint, Dr. Frankel acted as an employee or agent of ABS.
20. Defendant Steven D. Wray, MD, is a citizen of Georgia. He may be served with process at his residence: 4574 STELLA DR, ATLANTA, GA 30327-3437 (FULTON COUNTY).
21. Dr. Wray is subject to the personal jurisdiction of this Court.
22. Dr. Wray is subject to the subject-matter jurisdiction of this Court in this case.
23. Dr. Wray has been properly served with this Complaint.
24. Dr. Wray has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
25. Pursuant to OCGA 9-10-31, Dr. Wray is subject to venue in this Court because one of his co-defendants is subject to venue here.
26. At all times relevant to this Complaint, Dr. Wray acted as an employee or agent of ABS.
27. Defendant David M. Benglis, MD, is a citizen of Georgia. He may be served with process at his residence: 2431 FIELD WAY NE, BROOKHAVEN, GA 30319-4094 (DEKALB COUNTY).
28. Dr. Benglis is subject to the personal jurisdiction of this Court.
29. Dr. Benglis is subject to the subject-matter jurisdiction of this Court in this case.
30. Dr. Benglis has been properly served with this Complaint.
31. Dr. Benglis has no defense to this lawsuit based on undue delay in bringing suit — whether based on the statute of limitations, the statute of repose, laches, or any similar theory.
32. Dr. Benglis is subject to venue in this Court because he lives in this County.
33. At all times relevant to this Complaint, Dr. Benglis acted as an employee or agent of ABS.
34. Defendants John/Jane Doe 1-10 are those yet unidentified individuals and/or entities who may be liable, in whole or part, for the damages alleged herein. Once served with process, John/Jane Doe 1-10 are subject to the jurisdiction and venue of this Court.
35. This Court has subject matter jurisdiction, and venue is proper as to all Defendants in this Court.
General Principles
Anatomy of the spine generally
36. The human brain plays a major role in controlling all the functions of the body, and is connected to the rest of the body through the spinal cord.
37. The spinal cord runs down the body through a canal in the bony spinal column.
38. The spinal column consists of multiple bony vertebrae separated by spongy intervertebral disks.
39. The spinal column in the neck, above the ribs, is called the cervical spine. The spinal column at the level of the ribs is called the thoracic spine. The spinal column below the ribs, connecting to the pelvis, is called the lumbar spine.
40. Toward the bottom of the thoracic spine, the spinal cord fans out into separate bundles collectively called the “cauda equina.”
41. Each individual vertebra consists of an anterior vertebral body (in front of the spinal cord), posterior elements (behind the spinal cord), and pedicles (to the sides of the spinal cord).
42. Together, the parts of the bony vertebrae encircle the spinal cord and form the canal through which the spinal cord and cauda equina run. The hole in the middle of each individual vertebra, where the cord or cauda equina passes through, is called the vertebral foramen.
43. At the various levels of the spine, nerve roots from the spinal cord emerge through openings in the spinal column — the intervertebral or neural foramina.
44. Where the nerve roots exit the spinal column, they connect with networks of nerves that run to various organs and tissues of the body — combining to connect the brain to the body as a whole.
45. The nerves connecting the brain to the body serve multiple functions. Some nerves send sensation signals up to the brain — allowing us, for example, to feel pleasure and pain. Some nerves allow the brain to control muscles, so we can move our bodies intentionally. Some nerves allow the brain to regulate organs without our conscious awareness.
Spondylolisthesis and degenerative disk disease
46. “Spondylolisthesis” refers to a misalignment of two vertebrae — where one vertebra has moved abnormally forward or backward compared to an adjacent vertebra.
47. Spondylolisthesis can narrow the vertebral foramina that form the spinal canal, thereby compressing the spinal cord or cauda equina. Narrowing of an opening for a neural element is called “stenosis.”
48. Stenosis can cause pain and neurological deficits — including numbness, tingling, weakness, or impairment of normal organ function.
49. Spondylolisthesis often occurs in tandem with degenerative disk disease.
50. Degenerative disk disease involves the breakdown of the intervertebral disk due to aging and wear and tear.
51. A degenerating disk may flatten and bulge. This may reduce the height between two adjacent vertebrae, narrowing the intervertebral foramina. The bulging disk may directly impinge on the intervertebral foramina. These changes can compress the nerve roots passing through the intervertebral foramina.
52. A degenerating disk and/or spondylolisthesis may occur in tandem with arthritic changes in the facet joint (also known as the “apophysial joint,” or “zygapophysial joint”) — where the posterior elements of adjacent vertebrae join together to control the movement of the spine.
53. Arthritic changes at the facet joint may include abnormal bone growth that impinges on the intervertebral foramina and compresses the nerve roots.
54. Spondylolisthesis and degenerative disk disease, separately or in combination, may cause pain and neurological deficits.
55. A variety of potential surgical operations have been developed to remedy pain and neurological deficits arising from spondylolisthesis and/or degenerative disk disease.
Surgery principles
56. Spine surgeries vary in how extensive or invasive they are, but any spine surgery is a major surgery.
57. Any spine surgery poses significant risks to the patient.
58. Surgery at the spine carries the risk of injuring the neural elements near the site of the surgery.
59. Surgical injury to the spinal cord, cauda equina, or nerve roots can injure the patient catastrophically.
60. Surgical injury to the spinal cord, cauda equina, or nerve roots can cause the patient severe, permanent pain and neurological deficits.
61. To get to the spine, a surgeon must cut through some tissues and move other tissues or organs out of the way.
62. The difficulty of getting to the spine safely varies depending on which part of the spine is involved and which angle (front, back, side, etc.) the surgeon approaches the spine from.
63. Repeated surgeries to the same area of the spine may increase the risk of surgical injury to the patient, in part because of the presence of scar tissue.
64. Spine surgery should be offered to a patient only if more conservative therapies are unable to provide adequate relief.
65. To recommend a specific spine surgery, the surgeon must first identify the specific source of the pain or deficits to be remedied.
66. In recommending a specific spine surgery, the surgeon must carefully consider whether that surgery is likely to be safe and effective for the patient.
67. In performing surgery on the lumbar spine, the surgeon must exercise special caution to avoid nerve root injury from a screw, excessive nerve root retraction, and neural injury due to malpositioned interbody devices.
68. When placed too medially or into a foramen, a screw can cause direct mechanical damage to nerve roots or cord.
69. A malpositioned graft in the canal space may cause cord compression or cauda equina syndrome.
70. In performing a spine surgery, the surgeon must act with meticulous care to avoid damaging the neural elements at or near the surgical site.
71. In placing bone graft cages, screws, or medical devices in or on the spine, the surgeon must act with meticulous care to position the devices properly.
72. Modern operating rooms for spine surgery typically are equipped to take x-ray images of the patient from different angles, without having to move the patient. Some operating rooms are equipped for intraoperative CT scans.
73. A spine surgeon placing a bone graft cage in the spine must confirm proper placement of the device with intraoperative imaging, before fixing the cage in place.
74. A spine surgeon intending to use screws to fix an implant into the spine must ensure that the screws are not long enough to protrude into an intervertebral foramen or into the neural foramen.
75. After fixing a bone graft cage or screws into the spine, the surgeon must confirm proper placement with intraoperative imaging.
76. In using intraoperative imaging to confirm proper placement of medical devices, the surgeon must examine the images carefully and must take additional images if necessary to get a clear view of the position of the screws relative to the foramina.
77. Intraoperative neurological monitoring (IOM) during spinal procedures is used to monitor spinal cord and nerve function and alert the surgeon to any compromise of such.
78. IOM usually involves a combination of somatosensory evoked potentials (SSEP), free-run and stimulated electromyography (EMG), and motor evoked potentials (MEP).
79. Intraoperative EMG lets the surgeon know if a nerve root is irritated.
80. A spine surgeon should use IOM in any surgery involving a significant risk of intraoperative neurological injury detectable by IOM.
81. If intraoperative imaging or neurological monitoring indicates that the surgeon has positioned a device improperly in the spine, the surgeon must remove and/or reposition the device before ending the surgery.
82. Where the surgery causes new injury, it is important to remedy the injury during the surgery, if feasible. Repeat surgeries bring greater risks to the patient, in part because of scar tissue that forms inside the body, each time a surgeon cuts into the body. The scar tissue can make a repeat surgery more difficult and less effective, and the scar tissue can cause other medical problems for the patient.
Post-operative care
83. Postoperative complications are always possible and can be devastating for the patient. The surgeon must ensure diligent monitoring of the patient in the immediate post-operative period and promptly address complications.
84. Before and after spine surgery, the surgeon should perform a careful neurologic examination, to identify any postoperative neurological deficit.
85. A spine surgeon should order post-operative neuro- and vascular monitoring, and make sure that the nursing staff understands the importance of and specifically which groups of muscles or distal pulses need to be monitored.
86. In the event of unexpected postoperative pain, the surgeon should perform a neurologic examination to attempt to localize any new deficits.
87. A spine surgeon must never disregard inappropriate or increasing complaints of pain, as this might be one of the first signs of a possible lurking disaster such as an epidural hematoma.
88. In the event of unexpected postoperative pain, with a normal or unchanged neurologic examination from the preoperative baseline, an imaging study should be obtained immediately to investigate any possible operative complication.
89. Any new neurologic deficit, especially if it is focal and localizes to the operative region, should be immediately evaluated with postoperative imaging.
90. Postoperative investigatory imaging should be obtained in a timely manner, because a reversible condition could be identified. An MRI or CT should be used to determine if the new neurologic deficit is a result of a hematoma, a misplaced implant, or an inadequate decompression.
91. If postoperative imaging reveals a new injury that may be surgically reversible, the surgeon should, if safe, perform an exploratory surgery and, if possible, remedy the new deficit.
92. A surgeon must not wait months to remedy a surgical error that could have been remedied during the initial surgery or later the same day.
Treatment of Pamela Hay
Note: The allegations below contain page references to the medical records provided to the Defendants with this Complaint, and screenshots from the records. We provide these citations and screenshots to make it easier to respond to the allegations. However, we do not intend the citations or screenshots to be construed as part of the allegations themselves, and we do not ask for, or expect, responses to the citations or screenshots.
Prelude: October through mid-November 2018
93. On October 15, 2018, Pamela saw Dr. Roger Frankel, a neurosurgeon affiliated with Piedmont Hospitals.
· PHC 26
94. Dr. Frankel performed a neurological examination and reviewed a July 10 lumbar MRI and accompanying report.
· PHC 29-30
95. Dr. Frankel diagnosed Pamela with spondylolisthesis and planned to obtain x-rays and a CT scan in order to formulate a surgical plan.
· PHC 30
96. On October 31, 2018, Pamela saw Dr. Frankel again, to review a new lumbar CT.
· PHC 36
97. Dr. Frankel noted spondylolisthesis at L5-S1, and loss of disc height at L2-L3 and L3-L4. Dr. Frankel concluded that Pamela’s symptoms arose from disc collapse and foraminal stenosis at L5-S1. Dr. Frankel recommended a lift at that level.
· PHC 36
98. On November 2, 2018, Pamela returned to Dr. Frankel’s office. Nurse Practitioner Jane Yoffe wrote a History & Physical, which Dr. Frankel later co-signed.
· PH 12-16
99. NP Yoffe discussed an ALIF with Pamela.
· PH 15-16
100. According to the records, on November 9, 2018, Pamela again saw NP Yoffe to discuss the surgery treatment plan — a week after a similar visit on November 2.
· PHC 39-43
Surgery: Thursday, November 15, 2018
101. On Thursday, November 15, 2018, Pamela went to Piedmont Hospital at 1968 Peachtree Road NW in Atlanta.
· PH 6
102. Dr. Frankel was to perform an ALIF surgery (anterior lumbar instrumented fusion) and discectomy at the L5-S1 level of Pamela’s spine.
· PH 6-7
103. Dr. Frankel began the operation at 0758 hours.
· PH 83
104. During the procedure, Dr. Frankel and staff took seven static fluoroscopy images.
· PH 133
105. At 0813 hours (08:13:38 and 08:13:58), Dr. Frankel took two x-ray images showing the anterior exposure.
· See DICOM images and metadata
106. At 08:14:50 hours, Dr. Frankel took a fluoro image of the spine, before testing or sizing the implant.
107. About 8 minutes later, at 08:22:44 hours, Dr. Frankel took a fluoro image showing the spacer in the L5/S1 disk space.
· See DICOM images and metadata
108. Nine minutes after that, the next fluoro image shows the implant with all three screws in place.
· See DICOM images and metadata
109. At 08:38:44 hours, Dr. Frankel took an AP x-ray showing the implant in place.
· See DICOM images and metadata
110. At 08:39:26 hours, Dr. Frankel took the final intra-operative x-ray, again showing the implant and screws in place.
· See DICOM images and metadata
111. From the images, it should have been obvious that the cage was placed too posteriorly. It also should have been clear that the screws at least might have invaded the spinal canal.
112. Dr. Frankel was required to take meticulous care in placing the implant and screws. Based only on the x-rays he took, he should have repositioned the implant. But if Dr. Frankel was not sure the hardware was impinging on the spinal canal or the foramina, then he was required at minimum to take additional x-rays to more clearly see the positioning. Had he done so, neurological injury likely could have been avoided.
113. At 0913 hours, hospital staff transported Pamela to the PACU.
· PH 83 (image above)
114. Simultaneously, at 0913 hours, NP Jane Yoffe ordered lumbar x-rays, noting the clinical indication as “Postop evaluation.”
· PH 134
115. At 0915 hrs, in the post-anesthesia care unit (PACU) Pamela’s pain level was a 9 out of 10, and her blood pressure was 189/87.
· PH 499
116. At 0915 hours, NP Yoffe ordered IV narcotics for Pamela — hydromorphone, 0.2 mg. Nurse Witmer administered the first dose at 0926 hours.
· PH 145-46
117. At 0925 hours, Pamela still had a pain score of nine and high blood pressure.
· PH 499
· PH 508
· PH 558
118. At 0941 hours, Pamela had a pain level of 9 out of 10.
· PH 499 (image above)
119. In these circumstances, Dr. Frankel was required to examine the x-rays personally and immediately.
120. Again, from both the intraoperative and postoperative images, it should have been obvious that the cage was situated too posteriorly. It also should have been obvious, at minimum, that the screws might be invading the spinal canal. Taking the images together with Pamela’s immediate, intense pain, Dr. Frankel should have immediately taken Pamela to the OR to reposition the cage and screws.
121. He did not.
122. At 0948 hours, Dr. Roger Frankel wrote a post-op progress note: “Patient complains of exacerbation of leg pain. Strength good. Will start gabapentin and decadron.”
· PH 28
123. Dr. Frankel ordered no imaging to investigate the problem.
· PH 28 (image above)
124. Dr. Frankel did not take Pamela to the Operating Room to reposition the misplaced hardware.
· PH 28 (image above)
125. Dr. Frankel did enter the order for gabapentin.
· PH 142
126. Dr. Frankel billed for, and was paid for, his services in visiting Pamela in her hospital room.
127. Between 0941 and 1230 hours, Pamela continued to have severe pain, though mitigated by pain medication.
· PH 499
128. At 0948 hours, NP Yoffe entered an order for a steroid injection (dexamethasone, 4 mg) four times daily for a day.
· PH 138
129. From 0915 hours to 1300 hours, the nursing flowsheets indicate that Pamela had full sensation and no numbness in her legs.
· PH 506, 508
130. At or around 1229 hours, Pamela was taken from the PACU to Room 441, and Nurse Amy Farnam gave an SBAR (Situation-Background-Assessment-Recommendation) report to the floor nurse, Jackie Porter, RN.
· PH 501
131. At 1258 hours, NP Yoffe entered an order for methocarbamol — a muscle relaxer and pain-blocker, 750 mg tablet three times daily. Nurse Jacquelyn Porter administered the first dose at 1509 hours.
· See https://www.drugs.com/methocarbamol.html
· PH 148
132. At the same time, 1258 hours, NP Yoffe also entered an order for oxycodone — a narcotic pain medication, 10 mg tablet every four hours as needed. Nurse Porter administered the first 10 mg dose at 1717 hours.
· PH 154-55
133. Simultaneously, at 1258 hours, NP Yoffe entered an order for oxycodone 5 mg tablet every four hours as needed. Nurse Princess Johnson administered the first dose under this order at 2117 hours, as a 40 mg dose.
· PH 155-56
134. At 1258 hours, NP Yoffe also entered an order for prednisone, 4 mg tablet every morning. Prednisone is a corticosteroid. One of its functions is to reduce inflammation and pain that may be caused by inflammation. Nurse Vernetta Younger administered the first dose on 11/16/2018 at 0921 hours.
· See https://www.webmd.com/arthritis/prednisone-arthritis
· PH 156
135. At 1748 hours, Pamela complained to Nurse Jacquelyn Porter about worsening numbness in her legs. Nurse Porter made a phone call to Nurse Practitioner named Laura to inform her of Pamela’s changing condition. NP Laura provided no new orders, but told Nurse Porter to call if Pamela’s neurological condition worsened.
· PH 508
136. If the previous flowsheet notes were accurate (i.e., in saying Pamela had full sensation), then this was a new neurological deficit, and a sign of worsening neurological injury.
137. Despite Nurse Porter’s specific comment about the numbness in Pamela’s legs and feet, after the shift change, Nurse Princess Johnson recorded “flowsheet” notes indicating that Pamela had “full sensation” in both lower extremities. Nurse Johnson entered these notes at 1930 hours and again at 2330 hours.
· PH 503
138. These notes were incorrect — likely the result of auto-populated text fields or blind copy/paste errors.
139. About 2-1/2 hours after Nurse Porter called NP Laura — at around 2018 hours — Dr. Frankel examined Pamela.
· PH 29 (screenshot below)
140. Dr. Frankel noted that Pamela complained of numbness and tingling in the legs. Pamela had diminished sensation from the mid lower leg down to the feet. This numbness interfered with her ability to balance when she stood up.
· PH 29 (screenshot below)
141. Dr. Frankel wrote that Pamela had mild nerve apraxia “likely” due to manipulation and mild stretch with placement of the intervertebral implant.
· PH 29 (screenshot below)
142. Dr. Frankel’s “Plan” was that Pamela would “likely” improve “spontaneously.”
· PH 29
143. Upon learning that Pamela had developed new neurological deficits, Dr. Frankel should have acted immediately to identify the cause of the deficits.
144. If Dr. Frankel had investigated, he would have learned that the cage and screws were misplaced and were impinging on Pamela’s nerve roots and cauda equina.
145. The cage and screws were in fact wrongly positioned.
146. Leaving the cage and screws wrongly positioned for an extended time — days, weeks, months — risked causing serious, permanent harm to Pamela.
147. After reviewing the imaging, Dr. Frankel should have immediately prepared for surgery to reposition the cage and screws if that could be done safely and effectively, or otherwise to fix the problem he had caused by positioning the cage and screws wrongly.
148. At this point — the same day as the ALIF surgery — the cage and screws could have been repositioned safely and effectively.
149. Dr. Frankel did not examine Pamela again for the remainder of this hospitalization, which lasted another six days, until November 21.
Inpatient Recovery: Nov 16-21, 2018
Friday, November 16, 2018
150. The morning after the surgery, at about 0618 hours, Dr. Jay Steven Miller examined Pamela. Dr. Miller was the general surgeon who performed the opening for the ALIF that Dr. Frankel performed. Dr. Miller wrote that Pamela had parasthesia — abnormal sensation — in her feet.
· PH 29
151. At 0908 hours that morning, NP Jane Yoffe examined Pamela. NP Yoffe worked with Dr. Frankel. In her Progress Note, NP Yoffe noted that Pamela had “new numbness to bottom of feet.” NP Yoffe wrote that the numbness was “felt to be related to stretching of nerves during surgery.”
· PH 30-32
152. At about 1047 hours on November 16, Physical Therapist Jennifer Lynn Pauley came to Pamela’s room to perform an initial assessment. Pamela had significant numbness in both legs and could not feel her feet on the ground.
· PH 70-76
153. Neither Dr. Frankel nor any of his neurosurgery partners examined Pamela on November 16.
Saturday, November 17, 2018
154. At about 1033 hours on the morning of November 17, Dr. Steven Wray visited Pamela in her hospital room. Dr. Wray is a neurosurgeon and a partner of Dr. Frankel.
· PH 32 (screenshot below)
155. Dr. Wray noted that Pamela was crying and had paresthesias of her left leg. Dr. Wray wrote that it was “likely” related to restoration of intervertebral height.
· PH 32 (screenshot below)
156. Dr. Wray told Pamela that it is common to have nerve root irritation after ALIF surgery, and that Pamela’s symptoms would improve with time.
· PH 32
157. Dr. Wray did not examine the intraoperative or postoperative x-rays
· See PH 32.
158. Dr. Wray did not investigate the cause of Pamela’s neurological deficits, beyond surmising that they might be related to the ALIF surgery.
· See PH 32.
159. Dr. Wray did not identify the mal-positioning of cage and screws in the ALIF.
· See PH 32.
160. Dr. Wray took no action to ensure that the cage and screws would be promptly repositioned.
· See PH 32.
161. Dr. Wray billed, and was paid, for treating Pamela.
162. At this point, the day after the ALIF surgery, the cage and screws could have been repositioned safely and effectively — preventing any permanent injury to Pamela.
Sunday, November 18, 2018
163. At 0820 hours on Sunday, November 18, Dr. Wray visited Pamela in her hospital room.
· PH 33 (screenshot below)
164. Dr. Wray again noted that Pamela was crying and in severe pain. Dr. Wray noted that Pamela was not walking but could stand with assistance from a physical therapist and use a rolling walker.
· PH 33
165. Again Dr. Wray did not examine the intraoperative or postoperative x-rays
· See PH 33.
166. Again Dr. Wray did not investigate the cause of Pamela’s neurological deficits, beyond surmising that they might be related to the ALIF surgery.
· See PH 33.
167. Again Dr. Wray did not identify the mal-positioning of cage and screws in the ALIF.
· See PH 33.
168. Again Dr. Wray took no action to ensure that the cage and screws would be promptly repositioned.
· See PH 33.
169. Again Dr. Wray billed for, and was paid for, treating Pamela.
Monday, November 19, 2018
170. At 0804 hours on Monday, November 19, Dr. David Benglis visited Pamela in her hospital room. Dr. Benglis is a neurosurgeon and a partner of Dr. Frankel.
· PH 33-34 (screenshot below)
171. Dr. Benglis noted Pamela’s numbness of legs and feet.
· PH 33-34
172. Dr. Benglis did not examine the intraoperative or postoperative x-rays
· See PH 33.
173. Dr. Benglis did not investigate the cause of Pamela’s neurological deficits.
· See PH 33.
174. Dr. Benglis did not identify the mal-positioning of cage and screws in the ALIF.
· See PH 33.
175. Dr. Benglis took no action to ensure that the cage and screws would be promptly repositioned.
· See PH 33.
176. Dr. Benglis billed for, and was paid for, treating Pamela.
177. At 1206 hours, NP Jane Yoffe visited Pamela. NP Yoffe noted that Pamela had difficulty walking due to numbness on the bottoms of both feet.
· PH 36
Tuesday, November 20, 2018
178. At 0529 hours on Tuesday, November 20, 2018, Dr. Benglis visited Pamela in her hospital room. Dr. Benglis noted that Pamela was having significant difficulty with balance when walking.
· PH 36
179. Again, Dr. Benglis did not examine the intraoperative or postoperative x-rays
· See PH 33.
180. Again Dr. Benglis did not investigate the cause of Pamela’s neurological deficits.
· See PH 33.
181. Again Dr. Benglis did not identify the mal-positioning of cage and screws in the ALIF.
· See PH 33.
182. Again Dr. Benglis took no action to ensure that the cage and screws would be promptly repositioned.
· See PH 33.
183. Again Dr. Benglis billed for, and was paid for, treating Pamela.
184. At 0911 hours, NP Yoffe visited Pamela. NP Yoffe noted that Pamela had ongoing left hip and leg pain, which had required IV pain medication the previous day. NP Yoffe also noted intermittent burning in Pamela’s right foot.
· PH 36
Wednesday, November 21, 2018
185. In the afternoon of Wednesday, November 21, 2018, Dr. Frankel discharged Pamela to a skilled nursing facility.
· PH 6
186. Dr. Frankel had mal-positioned a bone-graft cage and screws in Pamela’s spine.
187. Dr. Frankel discharged Pamela with that hardware still mal-positioned.
Aftermath & Revision Surgeries
December 2018
188. On December 17, 2018 — about a month after the ALIF surgery — Pamela saw Dr. Frankel again. Pamela continued to suffer neurological pain and numbness in her lower legs. She was using a walker due to pain and unsteadiness.
· PHC 56
189. On December 18, 2018, a lumbar MRI was performed.
January 2019
190. On January 3, 2019, Pamela went to the Interventional Radiology department at Piedmont Hospital Atlanta.
· PH 606
191. Pamela was referred there by NP Jane Yoffe, from Dr. Frankel’s neurosurgery practice.
· PH 606
192. Pamela was there for a myelogram of her lumbar spine.
· PH 607
193. A myelogram is an x-ray or CT scan of the spinal canal, using contrast dye injected into the spinal column.
194. Radiologist Dr. Michael Lanfranchi interpreted the CT study.
· PH 656-57 (screenshot below)
195. Dr. Lanfranchi noted that: “The L5-S1 interbody cages is positioned more posteriorly than typically seen and extends into the ventral spinal canal/lateral recesses and neural foramina. This could irritate the L5 nerve roots. The fixating L5 extends into the posterior cortex of the posterior L5 vertebral body, and may protrude beyond it. The S1 fixating screws extend beyond the cortex of the S1 segment, protruding into the subarticular zones. These could exert irritate the descending S1 nerve roots. There is mild to moderate bilateral neural foraminal stenosis.”
· PH 656-57
196. On January 7, 2019, at 1430 hours, Pamela saw Dr. Frankel. Dr. Frankel noted Pamela’s continuing leg pain and numbness. He wrote that imaging so far had revealed no obvious source.
· PHC 64
197. Dr. Frankel noted the myelogram report. He wrote that “The patient has screw malposition likely causing her nerve symptoms.” He suggested surgery to remove “the anterior screws,” but did not identify which screws.
· PHC 64-70 (screenshot below)
198. Dr. Frankel did not think the bone graft cage could safely be removed. He suggested the possibility of a posterior surgery to decompress the neural elements in the foramina, if necessary.
· PHC 64-70
199. On January 17, 2019, Pamela went to Piedmont Hospital Atlanta for another surgery by Dr. Frankel, to address the pain and other deficits caused by the malpositioned L5-S1 hardware.
· PH 683
200. At 0710 hours on January 17, Dr. Frankel wrote a History & Physical similar to his January 7 Progress Note. Dr. Frankel noted Pamela’s “quite severe” pain and numbness.
· PH 690
201. Dr. Frankel noted again that “The patient has screw malposition likely causing her nerve symptoms.” Dr. Frankel reiterated the need to remove “the anterior screws,” the danger of removing the bone graft cage, and the possible need for a posterior foraminal decompression surgery.
· PH 696
202. The operation began at 0805 hours. The operation lasted approximately 34 minutes.
· PH 730
203. Dr. Jay Steven Miller performed the anterior exposure surgery.
· PH 697
204. Dr. Frankel then removed two of the three anterior screws. He removed the two screws going into the S1 body, but left the one L5 screw in place.
· PH 698-99
205. Post-operative x-rays showed removal of the S1 screws, with the L5 screw still in place.
· PH 774
· DICOM images
206. The radiology report noted that the L5 screw reached the posterior margin of the L5 body. The report also noted that the cage extended into the spinal canal.
· PH 774 (image above)
February through April 2019
207. About a month after On February 2, 2019, Pamela saw Dr. Frankel. He wrote that Pamela no longer had any significant radiating pain into the legs, but that she still had moderate numbness.
· PHC 82
208. On April 8, 2019, Pamela returned to see Dr. Frankel. He wrote that Pamela continued to have numbness and some neuropathic pain in her legs. He wrote that “there has been some increase of discomfort recently which may be due to the nerve recovery.” He wrote that he could not explain “the wide-based multi-myotome weakness of her post-operative issues at S1.”
· PHC 89-93
May – October 2019
209. On May 6, 2019, Pamela saw Dr. William Benedict, a neurosurgeon with a medical group separate from Dr. Frankel’s.
· WMG 18-23
210. Pamela sought help from Dr. Benedict with persistent pain, numbness, and weakness.
· WMG 19
211. Dr. Benedict reviewed the January 3 myelogram report.
· WMG 22
212. Dr. Benedict concluded that Pamela’s symptoms were caused by nerve damage due to poor screw placement intraoperatively. He recommended delaying additional surgery, in hope that it would prove unnecessary.
· WMG 23
213. On May 13, 2019, Pamela saw Dr. Frankel again. He noted that the nerve conduction test revealed L5-S1 abnormalities. He diagnosed Pamela with a lumbar radiculopathy and recommended epidural steroid injections to alleviate symptoms.
· PHC 96
· PHC 99
· PHC 100
214. On June 10, 2019, Pamela saw Dr. Benedict again.
· WMG 56-62
215. Dr. Benedict reviewed Pamela’s symptoms and reviewed a new lumbar CT scan from May 2019.
· WMG 57
· WMG 58
216. Dr. Benedict concluded that the malpositioned cage and screws had injured Pamela’s cauda equina, and that the cage was causing stenosis at L5-S1. Dr. Benedict ordered new x-rays to consider a laminectomy at L4-5, to decompress the nerve roots there. Dr. Benedict concluded that an attempt to revise the cage from an anterior approach would risk serious harm to Pamela.
· WMG 62
217. On August 19, 2019, Dr. Benedict saw Pamela again.
· WMG 92
218. Pamela was having pain, weakness, and difficulty walking. She had fallen in the bathtub a couple weeks before the office visit.
· WMG 93
219. Dr. Benedict recommended an L5 laminectomy to decompress the L5-S1 nerve, but he planned to consult with a vascular surgeon to consider the feasibility of another anterior surgery.
· WMG 100
220. On October 3, 2019, Dr. Benedict performed an L5-S1 laminectomy.
· WMG 3
Ongoing pain and limitations
221. Pamela continues to suffer severe pain and neurological deficits that limit her daily activities.
Count 1 – Professional Negligence (all Defendants)
222. Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.
223. The Defendants and their agents violated their standards of care as to the following tasks:
i. Spine Surgery Task & Requirement — Meticulous placement of hardware in spine:
224. Standard of care requirement: The standard of care requires a spine surgeon to take meticulous care in placing bone graft cages, screws, and other hardware in the spine and to ensure the hardware is properly positioned before ending the surgery. Where intra-operative imaging is available, the surgeon must use it to confirm proper placement of hardware before fixing the hardware in place.
225. Violation: Dr. Frankel violated this requirement by failing to take steps to confirm proper placement of the ALIF implant and screws before ending the surgery.
226. Causation: This violation led Dr. Frankel to inflict new injury on Pamela Hay’s spine and neural elements at the L5-S1 level.
227. Damages: This violation caused Pamela to suffer additional pain and neurological deficits.
ii. Spine Surgery Task & Requirement — Prompt investigation of unexpected, severe post-surgical pain and any new neurological deficits; prompt revision of surgical defects:
228. Standard of care requirement: The standard of care requires a spine surgeon to immediately investigate the source of any unexpected, severe post-surgical pain and any new neurological deficits. This typically (and in Pamela Hay’s case) requires radiographic imaging of the surgical area.
229. The standard of care requires the surgeon to personally examine the images (as opposed to relying solely on a radiologist). Where the imaging reveals surgical defects, the standard of care requires the surgeon to act immediately to remedy any surgical error that can be remedied.
230. Violation: Dr. Frankel, Dr. Wray, and Dr. Benglis each violated this requirement by failing to investigate the source of Pamela’s severe pain and the new or increased numbness in her legs during Pamela’s inpatient admission to recover from the November 15, 2018, surgery.
231. Drs. Frankel, Wray, and Benglis also violated this requirement by failing to takes steps to ensure a prompt operation to remedy the mal-positioning of the bone graft cage and the three screws holding it in place.
232. Causation: This violation allowed the malpositioned hardware to continue injuring the neural elements at the L5-S1 level. This violation also allowed the bone graft to continue growing, so that by the time Dr. Frankel performed any revision surgery, it was unsafe to remove or reposition the cage. That is, Dr. Frankel’s delay converted what might have been a temporary harm into a permanent harm.
233. Damages: This violation caused Pamela to suffer additional pain and neurological deficits.
Damages
234. Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.
235. As a direct and proximate result of the Defendants’ conduct, Plaintiff is entitled to recover from Defendants reasonable compensatory damages in an amount exceeding $10,000.00 to be determined by a fair and impartial jury for all damages Plaintiff suffered, including physical, emotional, and economic injuries.
236. WHEREFORE, Plaintiff demands a trial by jury and judgment against the Defendants as follows:
a. Compensatory damages in an amount exceeding $10,000.00 to be determined by a fair and impartial jury;
b. All costs of this action;
c. Expenses of litigation pursuant to OCGA 13-6-11;
d. Punitive damages; and
e. Such other and further relief as the Court deems just and proper.
November 13, 2020
Respectfully submitted,
/s/ Lloyd N. Bell
Georgia Bar No. 048800
Daniel E. Holloway
Georgia Bar No. 658026
BELL LAW FIRM
1201 Peachtree St. N.E., Suite 2000
Atlanta, GA 30361
(404) 249-6767 (tel)
bell@BellLawFirm.com
dan@BellLawFirm.com
Attorneys for Plaintiff
[1] OCGA §§ 14-2-510 and 14-3-510 provide identical venue provisions for regular business corporations and for nonprofit corporations:
“Each domestic corporation and each foreign corporation authorized to transact business in this state shall be deemed to reside and to be subject to venue as follows: (1) In civil proceedings generally, in the county of this state where the corporation maintains its registered office…. (3) In actions for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county; (4) In actions for damages because of torts, wrong, or injury done, in the county where the cause of action originated.”
These same venue provisions apply to Professional Corporations, because PCs are organized under the general “Business Corporation” provisions of the Georgia Code. See OCGA § 14-7-3. These venue provisions also apply to Limited Liability Companies, see OCGA § 14-11-1108, and to foreign limited liability partnerships, see OCGA § 14-8-46.
OCGA 9-10-31 provides that, “joint tort-feasors, obligors, or promisors, or joint contractors or copartners, residing in different counties, may be subject to an action as such in the same action in any county in which one or more of the defendants reside.”