EP06 S01: $1.5 MILLION ACDF Surgery Settlement in an Auto Accident Lawsuit
I discuss a recent jury trial story on a ACDF surgery settlement in an auto accident lawsuit for $1,500,000.00
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Welcome to Trial Stories an informative discussion of civil justice with a focus on the human story. I’m your host. Arkady Frekhtman a New York City trial lawyer passionate about helping serious injury victims and their families.
It was a stop sign case. And so after the liability, actually before the liability case, right before we were about to present our closing argument to the jury, the case ended up settling, so we never got to the damages phase. But this really helps to illustrate how we prepare, and how a lawyer prepares and goes through the medicals in order to explain the damages portion where the human loss is, and to fully explain that to a jury at trial. So this was some of our trial notebook, and you can see here the client had a cervical vertebrectomy. That’s the neck, and she had a disc injury, a herniation. The discectomy is when the doctor takes out the disc and puts in instrumentation and a fusion to fuse the level.
So what we basically did in preparing was we went through the operative report. We had the typed up operative report from the surgeon and we went through it word by word. So you could see here, he starts the operative report by saying, “An incision was carried down through subcutaneous tissue, identifying the platysma muscle.” So we actually went through it word by word. What is the subcutaneous tissue? And that’s just the skin going through it. It has different layers, blood vessels.
The platysma muscle is a broad sheath of muscle. It starts from the chest and the shoulder, and it goes all the way up over the collarbone and it proceeds and you could see the red part is the platysma muscle. So the platysma muscle was incised using a bovie cautery knife. So the doctor had to cut through that muscle to get to the neck to fix the herniated disc.
He went through anteriorly, which is through the front. Posterior would be the back and anterior is the front. So this is the knife that he used, the bovie cautery knife. Sometimes people who aren’t doctors, who aren’t so familiar with medicine, when they read something in a report like a bovie cautery knife, they might not know what that is, or a certain type of scalpel, a number two blade, a number three blade, and number 15 blade. You could Google it and get an image and you can get a sense of what it is. That’s what we do a lot of the time.
Then basically the medial border of the sternocleidomastoid muscle was identified and palpated with his index finger. So he found this muscle and you can see this is the muscle. That’s the one that juts out, like in the picture to the right of the lady. It’s the one that juts out right here, and you can see the muscle here as well on the left, the sternocleidomastoid muscle. So yeah, he found that muscle, and then he had to go between the interval between the carotid sheath and the esophagus and he had to dissect that interval, so we have to cut through there.
You could see he had to be careful because inside the carotid sheath, you have the jugular vein and the carotid artery. So he had to be very careful in cutting through to get to that anterior approach to get to that disc. Then basically the jugular vein as certain arteries, and then he had to get into the esophagus, which is the wind pipe we breathe through, and you have to get into there. And then basically he held it apart. After he cut through there and he spread it apart, he says the interval had to be held apart after being cut open by Army-Navy retractors, which are these pictured here. So he held it open so we could get into the disc to perform the surgery.
Then the longus colli muscles were identified, and those are the prevertebral fascia was incised using the bovie cautery knife again, and the disc space was identified. So you could see here a picture of the longus colli and the cervical fascia. And again, the prevertebral fascia, a thin layer of fibrous tissue that surrounds the spine. Then a needle with ball tip was inserted into the disc space. That’s the kind of usually needle that they use, and a Casper-type distractor placed. Then a 15 blade incision through the anterior longitudinal ligament excising the annulus. That’s the disc itself, the annulus. So he has to excise, or remove that, because of the severity of the herniation. So he’s going to use a blade to do it. Then he gets into the … and you could see the disc here. That would be the annulus right there.
The nucleus is the center of the disc. The entire disc is the circle, that little purplish circle right there. C6 and C7, so he completed … it was a complete discectomy performed. So the removal of the disc, including the part pressing on the nerves, the entire disc material was removed. He even wrote all this material as far to the side as joints of Luschka, and as far back as the posterior longitudinal ligament, so everything was removed.
And then he uses a one millimeter Kerrison and Karlin curettes and the PLL, which is the posterior longitudinal ligament, was removed exposing the dura. So that’s kind of an example of the machine he used. That’s a little bit of a sample of a picture that shows the PLL, the posterior longitudinal ligament, and it shows the dura, which is kind of like also a sheath protecting the spine. You could see here on the illustration, the types of what he had to go through to get there.
Yeah. So the PLL is behind the disc toward the back of the spine. You could see it here and in front there’s the anterior longitudinal ligament, and the posterior is right there behind the disc. Then the dura mater is a thick membrane made of dense connective tissue that surrounds the brain and spinal cord. So that’s the dura. And then here from a birds eye view, you could see the nerve roots and how everything comes into play. The dura, the epidural space, and the bilateral and medial foraminotomies were performed using the one and two millimeter Kerrisons. And a foraminotomy is a decompression surgery that is performed to enlarge the passageway where a spinal nerve root exits the spinal canal. So yeah, he’s basically removing that.
And then a Kerrison and Karlin curettes used as surgical instruments to remove the disc material. So again, he’s using this instrument to remove the disc material, and then he performs a vertebrectomy, which is a high speed burr drill, 60,000 revolutions per minute and to remove the bone until it’s visualized, until he can see that there’s no more nerve root compression, because he can get most of it, but what if there’s still a part of that disc that’s leaking and compressing those nerve roots and that’s going to cause pain? So the doctor is very careful to use this drill and to make sure that he could see that there’s no more compression.
This is an example also of the types of materials, arthrodesis types of materials that he’s using the burr drill. Intervertebral implant, so then he makes an implant and you could see how he does it. Sometimes they have to drill into the bone with the implant to keep everything stable. That’s another example of the vertebral implant disc being removed. And the annulus like we talked about is the disc itself, the part of the disc that has to get removed.
And then postoperative condition of the cervical spine after the fusion procedure. That’s when you see the plate basically and the screws being in there. So a corpectomy, a vertebrectomy, removing all of the vertebral body and that decompresses the spinal cord and nerves.
So this was the surgery that he had performed. The case ended up settling for just under $1.5 million dollars. There was some other issues with the case. Actually, after we finished and settled the case, we found out that we had most of the jurors going with us, but there were some issues on liability because some of the jurors thought perhaps our client had some fault. And then clearly, if your client has fault in an accident, in a crash like this, then even if you get that same amount, the percentages of fault that would apply to your client would then decrease the overall verdict.
So for example, if you get a $1 million result, but your client is 10% at fault, now you would only get $900,000. You don’t get the compensation for the percentage that your own client is at fault for, for an accident. When there’s two drivers, that’s something that you have to take into consider when preparing for and presenting a case.
So I hope this has been helpful. This is one of the ways we prepare our New York Injury cases. I think it’s very helpful because it allows us to know all the ins and outs of what’s happening, right? So if there’s a doctor on the stand and he gets cross examined and he’s using the terminology, like the number 15 blade, we already are ready, knowing what it is, and then our own experts can help us. So it’s pretty much, it’s a very good way to go. And you uncover certain things that you wouldn’t know otherwise, because a lot of attorneys might just say, “Oh yeah, okay, that’s another surgery case. The person had a surgery.”
But just like we talked about in the beginning of this case, something very interesting. They have to cut through all of these, like platysma muscle. They have to take the sternocleidomastoid muscle, cut through that. Then they have to, in a blunt manner, dissect that space between the carotid sheath, which itself has so much important carotid artery, the jugular where they have to … and the esophagus and move it all apart and hold it with retractors. I mean, just that in itself is just the beginning of the surgery. It was already so horrific.
So I think really painting that picture and showing the full extent of the damages to a jury will help to increase the ultimate result. Okay. I hope this has been helpful and stay safe and stay healthy out there. Bye-bye.