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Harmon v. Allen8/23/2001
JUDGMENT AFFIRMED.
This is an appeal from a jury verdict, following a medical malpractice trial before Judge Thomas O. Matia, finding in favor of appellees Mark Allen, M.D. and Center for Comprehensive Pain Care, Inc., ( CCPC ) on the negligence, lack of informed consent and loss of consortium claims of appellants Marilyn and William Harmon. The Harmons claim it was error to permit the testimony of a defense expert based upon facts that were not in evidence or perceived by him. We affirm.
Mrs. Harmon, born October 12, 1937, had suffered from chronic neck pain since a fall in the 1970's. A 1988 spinal fusion of the C-4/C-5 and C-6/C-7 vertebrae resulted in strong and persistent pain in her neck, head, lower face and jaw and, in an effort to alleviate this discomfort, she sought pain management treatment with the physicians of CCPC. Beginning in 1994 she received a series of epidural nerve block injections, then a regimen of facet joint/trigger point injections outside of the spinal cord by Dr. Edgar Ross and, when he left the group in mid-1997, Mrs. Harmon came under the care of Dr. Allen.
Because the facet joint injections were becoming less effective and more frequent and Mrs. Harmon was taking two strong narcotic medications, Dr. Allen obtained the results of a CT scan and suggested a C-3 epidural nerve root block on her C-3 dermatome in September of 1997. On October 15, 1997, while performing the procedure on Ms. Harmon at Meridia Southpointe Hospital, Dr. Allen inadvertently advanced a catheter into the subarachnoid and punctured the dura, the membrane that confines the spinal fluid within the spinal cord. Because the leakage of spinal fluid sometimes results in severe headaches, before completing the C-3 nerve root block, Dr. Allen performed a prophylactic epidural blood patch. He drew blood from Mrs. Harmon's arm and injected it into the dura to act as a patch of the hole created by the needle and prevent the leakage of spinal fluid. The procedure is termed prophylactic because it is done before headache symptoms occur in an attempt to prevent them.
As she awakened from the general anesthesia, Mrs. Harmon noticed progressive numbness and then paralysis of her legs and left arm. Dr. Allen called in Dr. Dale Braun, a neurosurgeon, for consultation and, after an MRI, they decided she required further surgery; Dr. Braun removed a large blood clot extending between the T-2 to T-8 thoracic vertebrae from Mrs. Harmon's spinal cord that had caused cord compression and the resulting paralysis.
Although she regained the ability to walk, Mrs. Harmon has significant residual weakness in her legs and complete numbness in her left hand due to the condition caused by the pressure of the clot on her spinal cord.
Mrs. Harmon and her husband filed suit against Dr. Allen and his two corporate employers, New Pointes Anesthesia & Pain, Inc. and CCPC. At trial, they asserted:
1. Medical malpractice, because Dr. Allen had negligently introduced blood into Mrs. Harmon's spine that eventually became the blood clot, and also never received informed consent from her to perform the series of procedures that he ultimately did;
2. Alteration of Dr. Allen's operative notes and the possible disappearance of the consent form that Mrs. Harmon signed on the day of her surgery;
3. A loss of consortium claim on behalf of Mr. Harmon; and,
4. A claim for punitive damages based upon the above claims.
At trial, the Harmons presented the testimony of Dr. David Brandon, an anesthesiologist, who claimed that Dr. Allen breached the standard of care in performing the procedure in the followin
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