In the State Court of Fulton County

State of Georgia

HENRY L. SO

ROATH SO,

                  Plaintiffs,

— versus —

ORTHO SPORT & SPINE PHYSICIANS, LLC

ORTHO SPORT & SPINE PHYSICIANS, DECATUR, LLC

ORTHO SPORT HOLDINGS, LLC

ORTHOPEDIC SURGERY CENTER OF SANDY SPRINGS, LLC

HANY M. HELMI, MD

APURVE K. JOSHI, MD

JEFFREY LEE, DO

JOHN/JANE DOE 1-10,

                  Defendants

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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 Henry So in October and November 2019.

2.             Pursuant to OCGA § 9-11-9.1, the Affidavit of Milton H. Landers, DO, PhD, and the Affidavit of Kate Spina, APN, CRNA, are attached hereto as Exhibits 1 and 2. This Complaint incorporates the opinions and factual allegations contained in those affidavits.

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

4.             Henry So and Roath So are citizens of Georgia. Henry and Roath are husband and wife.

5.             Defendant Ortho Sport & Spine Physicians, LLC (“OSSiP”) is a Georgia limited liability company with its Registered Office in Fulton County. OSSiP may be served through their Registered Agent, Yasha Heidari, at 5788 Roswell Road NE, Atlanta, Georgia 30328.

6.             OSSiP is subject to the personal jurisdiction of this Court.

7.             OSSiP is subject to the subject-matter jurisdiction of this Court in this case.

8.             OSSiP has been properly served with this Complaint.

9.             OSSiP 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 §§ 14-2-510, 14-3-510, and 14-11-1108[1] OSSiP is subject to venue in this Court because (a) it maintains its registered office in Fulton County and (b) the cause of action originated in Fulton County and the corporation has an office and transacts business in that county.

11.          At all relevant times, OSSiP was the employer or other principal of one or more of the following: Hany M. Helmi, MD, Apurve K. Joshi, MD, Jeffrey Lee, DO, and the nursing or office staff involved in the treatment of Henry So on November 22, 2019.

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 Ortho Sport & Spine Physicians, Decatur, LLC (“OSSPiD”) is a Georgia limited liability company with its Registered Office in Fulton County. OSSPiD may be served through their Registered Agent, Yasha Heidari, at 5788 Roswell Road NE, Atlanta, Georgia 30328.

14.          OSSPiD is subject to the personal jurisdiction of this Court.

15.          OSSPiD is subject to the subject-matter jurisdiction of this Court in this case.

16.          OSSPiD has been properly served with this Complaint.

17.          OSSPiD 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.          Pursuant to OCGA §§ 14-2-510, 14-3-510, and 14-11-1108 OSSiP is subject to venue in this Court because (a) it maintains its registered office in Fulton County and (b) the cause of action originated in Fulton County and the corporation has an office and transacts business in that county.

19.          At all relevant times, OSSPiD was the employer or other principal of one or more of the following: Hany M. Helmi, MD, Apurve K. Joshi, MD, Jeffrey Lee, DO, and the nursing or office staff involved in the treatment of Henry So on November 22, 2019.

20.          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.

21.          Defendant Ortho Sport Holdings, LLC (“OSH”) is a Georgia limited liability company with its Registered Office in Fulton County. OSH may be served through their Registered Agent, Yasha Heidari, at 5788 Roswell Road NE, Atlanta, Georgia 30328.

22.          OSH is subject to the personal jurisdiction of this Court.

23.          OSH is subject to the subject-matter jurisdiction of this Court in this case.

24.          OSH has been properly served with this Complaint.

25.          OSH 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.

26.          Pursuant to OCGA §§ 14-2-510, 14-3-510, and 14-11-1108 OSH is subject to venue in this Court because (a) it maintains its registered office in Fulton County and (b) the cause of action originated in Fulton County and the corporation has an office and transacts business in that county.

27.          At all relevant times, OSH was the employer or other principal of one or more of the following: Hany M. Helmi, MD, Apurve K. Joshi, MD, Jeffrey Lee, DO, and the nursing or office staff involved in the treatment of Henry So on November 22, 2019.

28.          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.

29.          Defendant Orthopedic Surgery Center Of Sandy Springs, LLC (“OSC”) is a Georgia limited liability company with its Registered Office in Fulton County. OSC may be served through their Registered Agent, Yasha Heidari, at 5788 Roswell Road NE, Atlanta, Georgia 30328.

30.          OSC is subject to the personal jurisdiction of this Court.

31.          OSC is subject to the subject-matter jurisdiction of this Court in this case.

32.          OSC has been properly served with this Complaint.

33.          OSC 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.

34.          Pursuant to OCGA §§ 14-2-510, 14-3-510, and 14-11-1108 OSC is subject to venue in this Court because (a) it maintains its registered office in Fulton County and (b) the cause of action originated in Fulton County and the corporation has an office and transacts business in that county.

35.          At all relevant times, OSC was the employer or other principal of one or more of the following: Hany M. Helmi, MD, Apurve K. Joshi, MD, Jeffrey Lee, DO, and the nursing or office staff involved in the treatment of Henry So on November 22, 2019.

36.          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.

37.          Defendant Hany M. Helmi, MD, is a citizen of Georgia, residing in Fulton County. He may be served with process at his residence: 33 11th St NE Unit 2312, Atlanta, GA 30309.

38.          Dr. Helmi is subject to the personal jurisdiction of this Court.

39.          Dr. Helmi is subject to the subject-matter jurisdiction of this Court in this case.

40.          Dr. Helmi has been properly served with this Complaint.

41.          Dr. Helmi 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.

42.          Dr. Helmi is subject to venue in this County because he lives here.

43.          At all times relevant to this Complaint, Dr. Helmi acted as an employee or agent of OSSiP.

44.          At all times relevant to this Complaint, Dr. Helmi acted as an employee or agent of OSSPiD.

45.          At all times relevant to this Complaint, Dr. Helmi acted as an employee or agent of OSH.

46.          At all times relevant to this Complaint, Dr. Helmi acted as an employee or agent of OSC.

47.          Defendant Apurve K. Joshi, MD, is a citizen of Georgia, residing in Fulton County. He may be served with process at his residence: 145 Windsor Cove, Atlanta, GA 30328.

48.          Dr. Joshi is subject to the personal jurisdiction of this Court.

49.          Dr. Joshi is subject to the subject-matter jurisdiction of this Court in this case.

50.          Dr. Joshi has been properly served with this Complaint.

51.          Dr. Joshi 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.

52.          Dr. Joshi is subject to venue in this County because he lives here.

53.          At all times relevant to this Complaint, Dr. Joshi acted as an employee or agent of OSSiP.

54.          At all times relevant to this Complaint, Dr. Joshi acted as an employee or agent of OSSPiD.

55.          At all times relevant to this Complaint, Dr. Joshi acted as an employee or agent of OSH.

56.          At all times relevant to this Complaint, Dr. Joshi acted as an employee or agent of OSC.

57.          Defendant Jeffrey Lee, DO, is a citizen of Georgia, residing in DeKalb County. He may be served with process at his residence: 60 Perimeter Center Pl NE, Atlanta GA 30346.

58.          Dr. Lee is subject to the personal jurisdiction of this Court.

59.          Dr. Lee is subject to the subject-matter jurisdiction of this Court in this case.

60.          Dr. Lee has been properly served with this Complaint.

61.          Dr. Lee 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.

62.          Pursuant to OCGA 9-10-31, Dr. Lee is subject to venue in this Court because his co-defendants, OSSip, OSSPiD, OSH, and OSC, are subject to venue in this Court.

63.          At all times relevant to this Complaint, Dr. Lee acted as an employee or agent of OSSiP.

64.          At all times relevant to this Complaint, Dr. Lee acted as an employee or agent of OSSPiD.

65.          At all times relevant to this Complaint, Dr. Lee acted as an employee or agent of OSH.

66.          At all times relevant to this Complaint, Dr. Lee acted as an employee or agent of OSC.

67.          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.

68.          This Court has subject matter jurisdiction, and venue is proper as to all Defendants in this Court.

Facts

General Principles

The spinal cord

69.           The spinal column is an intricate, crucial part of the body.

70.          The spinal cord contains densely packed nerve fibers that connect the brain to the rest of the body and help enable the brain to regulate and control the body.

71.          The spinal cord is important in controlling voluntary body functions that involve the use of muscles — walking, for example, or even standing still while keeping your balance.

72.          The spinal cord is important in controlling other body functions that are normally voluntary — for example, urinating or defecating.

73.          The spinal cord is important in controlling body functions that are partly or wholly involuntary — for example, breathing, regulating digestion, regulating body temperature, and sexual response.

74.          The spinal cord is important in creating sensation, whether painful, pleasurable, or neutral.

75.          Injury to the spinal cord can cause loss of sensation (numbness) or pain — sometimes intense, excruciating pain.

76.          Injury to the spinal cord can damage body functions such as regulating body temperature, bowel or bladder voiding, or sexual response.

77.          Injury to the spinal cord can impair muscle or motor function, for example by harming your ability to walk or to maintain balance.

78.          Injury to the spinal cord can be temporary or can last a lifetime.

79.          Injury to the spinal cord can occur from a physical impact (for example, from a needle being inserted into the cord).

80.          Injury to the spinal cord can occur from the mass effect of a substance injected into the spinal cord.

81.          Injury to the spinal cord can occur from the chemical impact of harmful substances injected into the cord.

Cervical Epidural Steroid Injection

82.          A cervical epidural steroid injection (“CESI”) is a shot of medication into the epidural space of the spinal column.

83.          The epidural space is a thin area between the bony back part of the vertebrae and the outer membrane that encloses the spinal cord (the dura mater). The epi-dural space is over or upon the dura.

84.          Typically, doctors give a CESI to relieve pain in the neck, shoulders, or arms that arises from compression or inflammation of a nerve or nerve root exiting the spinal cord.

85.          The purpose of a CESI is to numb the pinched or inflamed nerve root with anesthetic medication and to reduce inflammation with a steroid medication.

86.          In a CESI procedure, the physician sticks a needle in the back or side of the neck.

87.          The intention is to stick the tip of the needle into the epidural space, a fraction of an inch from the spinal cord, not inside the dura or spinal cord.

Two approaches for needle: (A) interlaminar or (B) transforaminal

88.          The risks of a CESI range from the relatively minor to the catastrophic. In the worst case, a physician might stick the needle all the way into the spinal cord itself and then inject the steroid into the cord — damaging the spinal cord and causing permanent pain, disabilities, or even death.

89.          A CESI typically is performed in less than half an hour, but the physicians and facility may bill in excess of $5,000 for a CESI.

90.          Because a CESI can cause catastrophic injury, a CESI is properly prescribed for pain only where the pain is serious and intractable, so that it significantly impairs the patient’s functioning in daily life.

91.          Before prescribing or performing a CESI, the physician must ensure that the patient understands the risks of the procedure.

92.          Before performing a CESI, the physician must evaluate the patient’s fitness for the procedure. This includes taking the patient’s blood pressure, to identify whether the patient is hypertensive.

93.          Hypertension in a CESI patient increases the risk of complications.

94.          For an elective procedure such as a CESI, if the patient is significantly hypertensive on the day of the procedure, the procedure should be called off until the blood pressure is treated or managed and returns to a normal range.

95.          The greatest risk of a CESI arises because the physician cannot, with the naked eye, see where the tip of the needle is.

96.          Various aspects of proper technique can reduce the risk of sticking the needle into the spinal cord, but two safety measures are particularly important.

97.          The two primary safeguards against sticking the needle into the spinal cord are (a) the patient’s ability to cry out in pain if the needle hits the spinal cord, and (b) radiological imaging to show the location of the needle.

98.          The patient’s ability to cry out requires that the patient remain responsive enough to sense pain.

99.          The patient must not be heavily sedated to the point where the patient cannot feel pain.

100.       Typically, a topical anesthetic is appropriate, to numb the pain from the needle first breaking the skin.

101.       In a routine CESI case, however, a general sedative or anesthetic that renders the patient insensate to pain is inappropriate and dangerous to the patient.

102.       A general sedative should not be used for a CESI unless there is a special need for it, specific to the patient.

103.       Even in a non-routine case where a stronger sedative may be required, in no event may a patient be sedated to the point that he or she will not feel if the needle pierces the outer membrane of the spinal cord.

104.       Where a general sedative is needed, sedating agents that are difficult to dose appropriately for the patient should be avoided, because they pose an unnecessary risk of over-sedation.

105.       Propofol is a strong general sedative.

106.       For a CESI, propofol poses an unnecessary risk of over-sedation.

107.       If a CESI cannot proceed without heavy sedation, the CESI must not proceed.

108.       The physician administering the CESI and any other medical providers involved in administering analgesia share responsibility for ensuring that the patient is not over-sedated — and for postponing the procedure if the patient is too sedated.

109.       The second primary safeguard against sticking the needle into the spinal cord is fluoroscopy — a form of radiological imaging that essentially provides live, continuous x-ray images as the physician pushes the needle into the spine.

110.       Even with fluoroscopy, images taken from a single view (from the back, for example) can mislead the physician about where the needle is.

111.       The physician must therefore obtain at least two views to confirm needle placement (e.g., from the back and from the side).

112.       To allow clearer, more useful x-ray images, the physician administering the CESI puts a contrast dye into the syringe.

113.       Injection of any substance into the body — particularly in or near the spinal cord — poses a risk to the patient and therefore should be done carefully.

114.       Before injecting the full volume of contrast dye, a physician administering a CESI should inject a minimal test dose, to make sure the contrast dye will not be injected into the spinal cord itself.

115.       The dispersal pattern of contrast dye differs, depending on where it is injected in the body.

116.       So the contrast dispersal pattern provides additional information to identify the location of the needle tip.

117.       A physician administering a CESI must understand and pay attention to the pattern of contrast injected.

118.       Before injecting the medication, the physician must confirm proper placement of the needle tip by all of the following: (a) response of the alert patient, (b) images of the needle from two different views on fluoroscopy, and (c) the dispersal pattern of the contrast dye.

119.       If any of those sources of information are unavailable or do not confirm proper placement of the needle, the physician must not inject the full volume of contrast or the medication.

120.       A physician administering a CESI must ensure that he or she has enough time to do the job properly, without being rushed or otherwise facing pressure to take shortcuts.

121.       Where a physician intends the patient to be sedated, the physician must ensure enough time has been allotted to the procedure to bring the patient out of an inadvertent overly-sedated state.

Record-keeping and radiology images

122.       A physician administering a CESI must obtain and archive enough fluoroscopy images, on at least two imaging planes, to show accurately what was done — where the needle was when injections were made of the test-amount of contrast, the full amount of contrast, and the medication.

123.       The physician must also write or dictate an operative note to accurately describe, in detail, the specific procedure.

124.       The physician must complete the operative note shortly after the procedure, when the details are fresh in the physician’s mind.

125.       The archived fluoroscopy images and the operative note protect the patient by providing a detailed record of the procedure in the event of post-operative complications.

126.       A physician administering anesthesia must keep records that state in detail what agents were administered, how much, the mechanism of delivery, and the time period over which they were administered.

127.       When post-operative complications arise, proper records assist downstream medical providers in timely diagnosing the patient and beginning appropriate treatment.

128.       Failure to keep proper records may harm the patient, in the event of post-operative complications, by delaying appropriate diagnosis and treatment.

Responding to post-operative complications

129.       When serious post-operative complications arise, the physician who administered the CESI must review the radiology images and the operative note, to help understand the cause and nature of the complications.

130.       If the patient must be taken to an Emergency Room because of post-operative complications, the physician who performed the CESI must fully and accurately inform the ER staff of the CESI procedure and any known or likely cause of the complications.

131.       In the event of post-operative complications, failure to properly review the records of the CESI and then to properly inform the ER staff may harm the patient by delaying appropriate diagnosis and treatment.

Greater Occipital Nerve Block

132.       The greater occipital nerve runs along the back of head and may be involved in various kinds of severe headaches.

133.       A nerve block involves an injection of anesthetic medication in the area of the nerve.

134.       A greater occipital nerve block is a simple, quick procedure — sometimes taking less than five minutes — but physicians and facilities may bill upwards of $500 for the procedure.

135.       A greater occipital nerve block poses risks of (among other things) infection, nerve damage, allergic reaction to the medication, and injection into the greater occipital artery.

136.       An occipital nerve block is indicated only for serious, long-term pain.

Henry So’s Course of Treatment

137.       In April 2019, Henry So was involved in a car crash. He underwent some chiropractic care but continued to have pain in his neck. (OSS 10.)

138.       After being advised to consider spine surgery, on October 15, 2019, Mr. So went to Ortho Sport & Spine for a second opinion. Dr. Mark A. Flood examined Mr. So. (OSS 10.)

139.       Mr. So described pain in his neck and shoulder area at a level of 6 out of 10.

140.       An MRI taken in April of that year showed foraminal stenosis (narrowing of the openings in the vertebrae, where nerve roots exit the spinal column) with impingement of the C7 nerve roots on both the left and right sides. (OSS 10-11.)

141.       Dr. Flood recommended an interlaminar CESI, and perhaps a series of three injections. Mr. So accepted the recommendation. (OSS 11.)

142.       Dr. Flood did not advise Mr. So of the risks of a CESI in general or specifically of the risk of permanent disability from injection of the medication into Mr. So’s spinal cord.

143.       On October 21, 2019, Mr. So appeared at Ortho Sport & Spine for the scheduled CESI. Dr. Ryan Rosen (not Dr. Mark Flood) saw Mr. So. Dr. Rosen had not seen Mr. So before this visit. Dr. Rosen performed a CESI without documenting his own examination of his patient or independently verifying that a CESI was indicated for Mr. So. (OSS 8-9.)

144.       Dr. Rosen performed a CESI on Mr. So at the C7/T1 level, using intravenous sedatives. (OSS 8.)

145.       Dr. Rosen’s operative note does not indicate what type or amount of sedative was used on Mr. So. (OSS 8.)

146.       Dr. Rosen’s operative note provides only a vague description of the CESI procedure. (OSS 8.)

147.       On October 28, 2019, Mr. So returned to Ortho Sport & Spine for a follow-up visit. This time, he was seen by Dr. Jeffrey Lee (the third Ortho Sport & Spine doctor in three visits). Mr. So reported that his pain was at a level of 3 out of 10 (as compared with 6 out of 10 on the October 15 visit). (OSS 6-7.)

148.       On November 4, 2019, Mr. So returned for a second follow-up visit. Again he was seen by Dr. Jeffrey Lee. As at the previous visit, Mr. So reported that his neck pain was at a level of 3 out of 10. (OSS 4.)

149.       Mr. So also reported frequent headaches, but Dr. Lee did not record the intensity of the headaches. (OSS 4.)

150.       Dr. Lee recommended another CESI and a greater occipital nerve block. (OSS 5.)

151.       The medical records do not indicate that Dr. Lee informed Mr. So of the risks of the CESI or of the nerve block. (OSS 4-5.)

152.       A CESI was not indicated or justified for 3-out-of-10 neck pain.

153.       A greater occipital nerve block was not indicated for headaches of unspecified intensity.

154.       Dr. Lee violated the standard by prescribing another CESI.

155.       Dr. Lee violated the standard by making the prescription without informing Mr. So of the risks.

156.       Dr. Lee violated the standard by prescribing the greater occipital nerve block.

157.       Dr. Lee violated the standard by making the prescription without informing Mr. So of the risks.

158.       On Friday, November 22, 2019, Mr. So appeared at Ortho for the scheduled CESI. This time he was seen by Dr. Hany M. Helmi. Dr. Helmi was the fourth Ortho Sport & Spine doctor to see Mr. So. (OSS 2.)

159.        Dr. Helmi had not seen Mr. So before, but Dr. Helmi did not document that he performed an examination of his new patient. Nevertheless, Dr. Helmi proceeded to perform a CESI and nerve block. (OSS 2-3.)

160.       Dr. Helmi violated the standard of care by performing the procedures without conducting an examination of his patient to ensure that the procedures were indicated.

161.       The records contain no indication that Dr. Helmi ensured Mr. So understood the risks of the procedures. (OSS 2-3.)

162.       Dr. Helmi violated the standard of care by performing the procedures without ensuring that Mr. So understood the risks.

163.       A nurse (Rachell Dunn?) apparently employed by Ortho Sport & Spine performed an “Operative Day Assessment” of Mr. So, beginning at 0906 hours. (NHA 344.)

164.       The nurse noted that Mr. So’s pre-op pain rating was 4 out of 10. (NHA 344.)

165.       A CESI was not indicated for Mr. So’s 4-out-of-10 pain.

166.       Dr. Helmi violated the standard of care by performing a CESI on Mr. So despite the operation not being indicated.

167.       At 9:30, when anesthesia began, Mr. So’s blood pressure was 200/100. (NHA 345).

168.       The high range of normal blood pressure is approximately 120/80.

169.       Systolic pressure over 180 may be classified as a hypertensive crisis.

170.       In light of Mr. So’s systolic pressure of 200, he was not medically fit for an elective CESI.

171.       Dr. Joshi and Dr. Helmi violated the standard of care by proceeding with the CESI despite Mr. So’s abnormally high blood pressure.

172.       Anesthesia began at 9:30. Surgery began at 9:34. Surgery ended at 9:40. And anesthesia ended at 9:42. (NHA 345.)

173.       Dr. Joshi administered 200 mg of propofol to Mr. So. (NHA 345.)

174.       Propofol is a general anesthetic.

175.       Propofol is a powerful agent, difficult to dose precisely for a given patient, and therefore posing a risk of over-sedation.

176.       General anesthesia is generally inappropriate for CESI patients, and there was no need for Mr. So to receive a general anesthetic.

177.       Dr. Joshi violated the standard of care by administering a general anesthetic to Mr. So.

178.       Dr. Helmi violated the standard of care by performing a CESI on Mr. So while he was sedated by a general anesthetic.

179.       Even if a general anesthetic had been appropriate for Mr. So, 200 mg would have been an excessive dose.

180.       If a general anesthetic was necessary at all, it would be permissible only for moderate sedation.

181.       Under any circumstances, it was vitally important that Mr. So be alert, able to feel pain if his spinal cord was punctured, and able to cry out in pain.

182.       Two hundred milligrams of propofol, administered over the course of 12 minutes, was likely enough to render Mr. So completely unconscious.

183.       Dr. Joshi violated the standard of care by administering an excessive dose of propofol to Mr. So.

184.       Dr. Helmi violated the standard of care by performing a CESI on Mr. So while he was over-sedated.

185.       Dr. Joshi’s anesthesia record does not indicate clearly the method of delivery of the anesthesia, the time over which it was administered, or the reasons it was indicated. The record is inadequate, and Dr. Joshi violated the standard of care by failing to keep an adequate record.

186.       Dr. Helmi’s record of the CESI is also inadequate.

187.       It appears Dr. Helmi recorded only three fluoroscopy images.

188.       These images do not adequately demonstrate the steps Dr. Helmi took in performing the CESI.

189.       Dr. Helmi violated the standard of care by choosing to discard the images that would have demonstrated exactly what he did in the operation.

190.       The images Dr. Helmi retained directly indicate that the tip of the needle was not in the epidural space. The images indicate that the needle had crossed the midline of the spine and was in the center of the spinal canal, not posterior to the canal.

191.       These images indicate, however, that Dr. Helmi injected a full volume of contrast into the dural space — not the epidural space. The contrast-dispersal pattern shows sharp, well-defined margins running along the boundaries of the spinal cord.

192.       The contrast dispersal pattern should have clearly alerted Dr. Helmi that he had stuck the needle past the epidural space, inside the membranes covering the spinal cord.

193.       Dr. Helmi violated the standard of care by injecting the full volume of contrast before using a test dose of contrast to ensure proper placement of the needle.

194.       Dr. Helmi violated the standard of care by ignoring plain evidence that he had stuck the needle into Mr. So’s spinal cord.

195.       Later that day, after Mr. So was taken to the Emergency Room, MRI images were taken of Mr. So’s spine. Those images show that Dr. Helmi injected the steroid medication into Mr. So’s spinal cord. The light-colored material within the spinal cord is the steroid/anesthetic medication. (Contrast Mr. So’s image on the right with normal spinal cord images on the left.)

196.       The radiologist who interpreted the MRI findings concluded that they showed “abnormal signal within the cord posteriorly with almost a track-like appearance possibly related to the epidural injection,” and that the images showed “cord signal hyperintensity … compatible with intramedullary cord injection….” (NHA 577.)

197.       The neurosurgeon who evaluated Mr. So at the hospital also concluded that Dr. Helmi had injected the steroid/anesthetic medication into Mr. So’s spinal cord. (NHA 141-44.)

198.       Dr. Helmi violated the standard of care by injecting the medication without obtaining sufficient fluoroscopic images to confirm proper placement of the needle tip.

199.       Dr. Helmi violated the standard of care by injecting the medication despite seeing a contrast dispersal pattern that indicated the needle was in Mr. So’s spinal cord.

200.       After the operation, Mr. So awoke with severe pain in his abdomen and legs, with loss of sensation normal sensation in his legs, and with difficulty breathing. (OSS 20-21; NHA 60; NHA 38; NHA 39; NHA 141.)

201.       Surgery ended at 0940 hours, and an ambulance was called 25 minutes later, at 1004 hours. The EMS arrived at Ortho Sport & Spine at 1011 hours, left with Mr. So in the ambulance at 1025 hours, and arrived with him at the ER at 1031 hours. (NHA 60.)

202.       Dr. Helmi did not dictate an operative report until nearly seven hours after the operation, at 1658 hours. (OSS 20-21.)

203.       Dr. Helmi’s operative report included only a vague description of the CESI procedure, which is nearly identical to the description in Dr. Rosen’s October 21 CESI operative report.(OSS 2; OSS 8.)

204.       Dr. Helmi violated the standard of care by failing to promptly write an operative note that adequately described the actual procedure.

205.       On the post-procedure sheet, the Ortho Sport & Spine nurse recorded Mr. So’s post-op admission pain rating as 0 out of 10, and recorded that Mr. So was discharged home. (NHA 344.)

206.       The post-procedure care sheet noted Mr. So’s blood pressure at 0940 hours as 190/115, and at 0950 hours as 170/110. (NHA 344.)

207.       The EMS noted Mr. So’s blood pressure at 1020 hours as 182/110 and at 1030 hours as 174/100. (NHA 61.)

208.       Dr. Helmi and other Ortho Sport & Spine staff conveyed misleading information to the ER physicians.

209.       Most importantly, Dr. Helmi did not review the fluoroscopy images and inform the ER staff that he had injected medication into Mr. So’s spinal cord. Instead, Dr. Helmi said he suspected Mr. So had suffered cord compression (which differs from injection into the spinal cord). (NHA 132.)

210.       Additionally, it appears that Dr. Helmi conveyed the impression that Mr. So began having high blood pressure only after the CESI, which was not true. (NHA 132.)

211.       These misimpressions led the ER physician and other hospital staff down false trails. (NHA 132.)

212.       The false trails delayed Mr. So’s diagnosis. While Mr. So’s symptoms began immediately after waking from the CESI, at approximately 1000 hours, his injury was not identified for more than five hours — not until 1527 hours, when an MRI of Mr. So’s neck was taken and read. (NHA 576-77.)

213.       In responding to his patient’s post-operative crisis, Dr. Helmi violated the standard of care either by ignoring the fluoroscopy images from the CESI or misrepresenting what he had done to Mr. So.

214.       Dr. Helmi violated the standard of care by conveying erroneous impressions to the physicians who assumed responsibility for diagnosing and treating Mr. So.

215.       At some point on November 22, Dr. Helmi talked to Mr. So in the hospital.

216.       Dr. Helmi told Mr. So there was no problem with the CESI.

217.       Dr. Helmi told Mr. So that his symptoms were a function of pre-existing spine problems.

218.       Dr. Helmi told Mr. So that his pain was a good sign — a sign that the injection was working.

219.       Dr. Helmi misled Mr. So.

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220.       Dr. Helmi’s CESI and occipital nerve block operations took six minutes. The anesthesia time was 12 minutes. (NHA 345.)

221.       For the 12 minutes of anesthesia services, Dr. Joshi and the surgery center charged $2,100. (OSS 25.)

222.       For the six minutes of surgery, Dr. Helmi and the surgery center charged $6,385. (OSS 25.)

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223.       The standard of care violations described above led to Dr. Helmi injecting medication into Mr. So’s spinal cord.

224.       The spinal cord injection damaged Mr. So’s spinal cord.

225.       The spinal cord injection caused Mr. So serious, permanent neurological deficits.

226.       The delay in diagnosis and treatment limited the extent of Mr. So’s recovery.

Count 1 – Professional Negligence (all Defendants)

227.       Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

228.       The Defendants and their agents violated their standards of care as to the following tasks:

a.    Task: Prescribing a Cervical Epidural Steroid Injection

Jeffrey Lee, DO, violated the standard of care on 11/4/2019 by prescribing a Cervical Epidural Steroid Injection that was not indicated for Mr. So, and by doing so without properly informing Mr. So of the significant risks of such an injection.

b.    Task: Prescribing a Greater Occipital Nerve Block

Jeffrey Lee, DO, violated the standard of care on 11/4/2019 by prescribing a Greater Occipital Nerve Block that was not indicated for Mr. So.

c.     Task: Evaluating whether to administer a Cervical Epidural Steroid Injection or a Greater Occipital Nerve Block to a new patient

Hany M. Helmi, MD violated the standard of care on 11/22/2019 by choosing to administer a Cervical Epidural Steroid Injection and a Greater Occipital Nerve Block to Mr. So despite having never seen him before, without taking a history to ensure the procedures were indicated for Mr. So.

d.    Task: Providing analgesia for a Cervical Epidural Steroid Injection

Apurve K. Joshi, MD, violated the standard of care on 11/22/2019 by over-sedating Mr. So to the point that Mr. So could not feel and respond to painful stimulus if the CESI needle was misplaced.

(The anesthesia provider’s signature is difficult to read, but I believe the provider was Dr. Joshi. If that is incorrect, then my criticisms of Dr. Joshi apply to the actual anesthesia provider.)

Dr. Helmi violated the standard of care by allowing his patient to be over-sedated and rendered incapable of responding to painful stimulus, and by proceeding with the injections despite the over-sedation.

e.     Task: Keeping records of analgesia/anesthesia procedures

Dr. Joshi violated the standard of care on 11/22/2019 by keeping records of the anesthesia procedure that omitted information about how and over what time period the anesthesia was delivered, and by failing to record Mr. So’s heart rate.

f.      Task: Evaluating the patient’s fitness for the operation

Dr.  Joshi and Dr. Helmi violated the standard of care on 11/22/2019 by proceeding with the CESI even though Mr. So had very high blood pressure.

g.    Task: Administering a Cervical Epidural Steroid Injection

Dr. Helmi violated the standard of care by:

(1) injecting the full volume of contrast without first injecting a small volume of contrast to assure epidural access

(2) injecting the medication without first confirming and documenting proper needle position

(3) ignoring intra-operative images that indicated an injection within the spinal cord.

h.    Task: Responding to post-operative complications after a Cervical Epidural Steroid Injection and communicating with Emergency Room physicians

After Mr. So awoke with severe pain, Dr. Helmi violated the standard of care by ignoring the intra-operative records that indicated an injection within the spinal cord, and by failing to tell the ER doctor that the injectate had been injected into Mr. So’s spinal cord.

i.      Task: Creating an operative note for a Cervical Epidural Steroid Injection

Dr. Helmi violated the standard of care by failing to properly describe the operations but instead (apparently) using copy/paste text that omitted a description of the index procedure, that gave a vague description of the technique, that does not correlate with the radiology images.

j.      Task: Maintaining radiology images for a Cervical Epidural Steroid Injection.

Dr. Helmi violated the standard of care by failing either to take or to archive appropriate intra-operative radiology images.

229.       This list may not be exhaustive.

230.       The foregoing standard-of-care violations caused Henry So to suffer an injection of medication into his spinal cord.

231.       The injection into the spinal cord damaged the nerve fibers in the spinal cord, leading to permanent, serious neurological deficits.

232.       The corporate Defendants — OSSiP, OSSPiD, OSH, OSC — are vicariously liable for the negligence of their employees or other agents, because the agents acted within the scope of their agency for the corporate Defendants.

233.       Pursuant to OCGA Title 51, Chapter 4, Henry So is entitled to recover from all Defendants for all damages caused by the Defendants’ professional negligence.

Count 2 – Loss of Consortium (all Defendants)

234.       Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

235.       As a result of the standard-of-care violations discussed above, Roath So has suffered a loss of consortium.

236.       Mrs. So is entitled to recover from all Defendants for the loss of consortium she has suffered.

Count 3 – Expenses of Litigation, pursuant to OCGA 13-6-11 (all Defendants)

237.       Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

238.       In the events discussed above, Dr. Lee, Dr. Helmi, and the staff involved in Mr. So’s treatment acted in bad faith.

239.       Dr. Lee acted in bad faith by prescribing a CESI that he knew was not indicated, and by not telling Mr. So about the grave risks of a CESI.

240.       Dr. Helmi acted in bad faith (a) by performing a CESI that he knew was not indicated, (b) performing a CESI despite knowing Mr. So was in a hypertensive crisis, (c) discarding fluoroscopy images that would adequately reveal the actual steps in the procedure, (d) misinforming both Mr. So and the ER physicians about what happened to Mr. So.

241.       Dr. Joshi acted in bad faith by administering general anesthesia that he knew was unnecessary and dangerous to Mr. So.

242.       The nursing staff involved in treating Mr. So on November 22, 2019, acted in bad faith by choosing to let the CESI go forward despite knowing Mr. So being in a hypertensive crisis.

243.       Each of these individuals engaged in this behavior in part for a monetary motive — because a CESI and greater occipital nerve block (and unnecessary, dangerous anesthesia for them) are fast, high-profit procedures.

244.       The corporate defendants knowingly encourage their employees and other agents to engage in such bad faith conduct, for the coprorate entities’ own monetary motives.

245.       The corporate defendants encourage such bad faith conduct in part through the manner in which they determine the amount of money paid to their employees and other agents.

246.       Accordingly, Plaintiffs seek to recover their expenses of litigation, pursuant to OCGA 13-6-11.

Count 4 – Punitive Damages, pursuant to OCGA 51-12-5.1 (all Defendants)

247.       Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

248.       By engaging in the conduct discussed above, the Defendants engaged in willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

249.       Accordingly, Plaintiffs are entitled to recover punitive damages pursuant to OCGA 51-12-5.1.

Damages

250.       Plaintiff incorporates by reference, as if fully set forth herein, all preceding paragraphs of this Complaint.

251.       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.

252.       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.

June XX, 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

/s/ Lawrence B. Schlachter                      

Lawrence B. Schlachter M.D. J.D.

Georgia Bar No. 001353

Schlachter Law Firm

1201 Peachtree Street NE, Suite 2000

Atlanta, GA 30361

(770) 552-8362 (tel)

larry@schlachterlaw.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.”

Note: 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.