$20.7 Million Plaintiff Verdict for Untreated Spinal Infection

Case Overview

Case Name: Daniel Sullivan v. Robert Snow Robert B. Snow, M.D., P.C., the New York and Presbyterian Hospital New York Weill Cornell Medical Center

Case Type: Medical Malpractice – delayed treatment; failure to test; failure to diagnose; post-operative care

Injury:

• Infection
• Discitis
• Osteomyelitis

Plaintiff Attorneys:

• Joseph P. Award; Silberstein, Awad & Miklos, P.C.
• Erica N. Moskowitz; Silberstein, Awad & Miklos, P.C.

Defense Attorney:

• Neil F. Brenes; Aaronson Rappaport Feinstein and Deutsch, LLP

Case Outcome: Verdict – Plaintiff

Award Amount: $20,700,000

What Happened?

On March 26, 2014, plaintiff Daniel Sullivan (age 37) underwent surgery at New York-Presbyterian Weill Cornell Medical Center to treat his spine’s L4, L5, and S1 levels. The surgery, performed by neurosurgeon Dr. Robert Snow, involved the excision of portions of the vertebrae and the L5-S1 intervertebral disc as well as the enlargement of passages that housed spinal nerves.

On April 5, 2014, the plaintiff began experiencing pain in the lumbar region and called Dr. Snow’s office. Dr. Snow advised him that post-surgical pain was normal. He increased the plaintiff’s pain medication and prescribed steroid-based medication as well. The next day, the plaintiff’s pain greatly increased, so he went back to the New York-Presbyterian Weill Cornell Medical Center. At the medical center, Sullivan underwent an MRI scan. The radiologist advised that the MRI depicted either granulation tissue, which typically indicates that healing has begun, or phlegmon, which is an inflammatory condition that suggests an infection. The bloodwork suggested the latter, revealing an elevated level of C-reactive protein and an erythrocyte sedimentation rate which suggested inflammation. The bloodwork also revealed leukocytosis, which suggested the presence of an infection.

Dr. Snow reviewed the plaintiff’s test results and concluded that the leukocytosis was a residual effect of the steroid-based medication. During an April 8, 2014 examination, the doctor found that Sullivan’s symptoms were all a normal part of post-surgical development. Dr. Snow suggested continued monitoring of the plaintiff’s progress.

Persisting Pain

On April 15, 2014, the plaintiff visited the doctor again and reported that the pain did not resolve. Dr. Snow maintained that the pain the plaintiff was experiencing was a normal result of post-surgical spasms. Furthermore, the doctor believed that the plaintiff’s condition was improving. The doctor did suggest further bloodwork if the plaintiff’s condition worsened.

The plaintiff’s pain did, in fact, persist, causing him to undergo acupuncture and chiropractic treatments. At the advice of his acupuncturist, the plaintiff admitted himself to a hospital. Hospital tests indicated that he was suffering from discitis, which involved infection of his L5-S1 disc, and osteomyelitis, which involved infection of his spine’s L4-5 and L5-S1 levels. The plaintiff underwent a lengthy course of intravenously administered antibiotics to treat the infections.

The Lawsuit’s Allegations and Trial Testimony

Plaintiff Daniel Sullivan sued Dr. Snow, the doctor’s practice, Robert B. Snow, M.D., P.C., and New York-Presbyterian Weill Cornell Medical Center. Sullivan alleged that Snow failed to diagnose his infection. According to the plaintiff, that failure constituted malpractice. Sullivan also claimed that the remaining defendant was vicariously liable for Dr. Snow’s actions. The plaintiff argued that Dr. Snow did not properly investigate symptoms that suggested the development of an infection.

Sullivan claimed that the osteomyelitis in his spine’s L4-5 and L5-S1 levels caused his daily and permanent residual pain. His L5-S1 level collapsed, and he suffered the erosion of his bone and tissue. According to the plaintiff, his pain has diminished his ability to concentrate and earn an income. In December 2016, he was fired from his job as a bond broker, which he claimed was a result of his medical condition. The plaintiff argued that his new career in real estate doesn’t earn him the same income as he had prior. As such, the plaintiff sought recovery for past lost earnings, damages for future diminution of earning capacity, and damages for past and future pain and suffering.

The Plaintiff’s Arguments

At trial, the plaintiff’s counsel noted that the doctor acknowledged the possibility of an infection. However, the attorneys argued that the defendants failed to undertake a timely investigation. The plaintiff further argued that something other than the normal aftermath of surgery caused the localized pain. Moreover, the plaintiff noted that the prior pain for which he had undergone surgery was resolved. The plaintiff presented the testimony of an infectious diseases expert. The expert concluded that another MRI and additional bloodwork would have been the appropriate and necessary actions. The plaintiff also presented the testimony of a neurosurgeon, who found that the inaction of Dr. Snow, which was a departure from the accepted standard of care under these circumstances, caused the erosion of the plaintiff’s bone and tissue, the destruction of the L5-S1 disc, and the resulting collapse of the spine’s L5-S1 level.

The Defense Arguments

Defense counsel argued that any pain the plaintiff experienced was the result of his pre-existing spinal degeneration. They emphasized that the plaintiff’s neurosurgeon expert conceded that the plaintiff does not suffer from any neurological impairment that could be linked to an infection. The defense presented their own infectious diseases expert who stated that the plaintiff’s osteomyelitis could not have been sooner diagnosed. The defendants argued that the condition is not typically diagnosable during the eight weeks that follow the onset of the underlying infection. Likewise, the defense asserted that the doctor also could not have diagnosed the plaintiff’s discitis any sooner. In terms of Dr. Snow’s failure to investigate, the defense’s neurosurgeon expert concluded that Dr. Snow properly responded to the plaintiff’s symptoms and that the elevated levels of C-reactive proteins would have typically proliferated during the weeks that followed.

Who Won the Case?

After a 15-day trial, the jury found in favor of the plaintiff, finding that Dr. Snow departed from the accepted standard of medical care. The jury rejected the contention that the doctor should have diagnosed the infection on April 8th. However, they found that the doctor should have discovered the infection by April 15th. The jury awarded damages totaling $20.7 million.

The award broke out as follows:

• $6,400,000 for past lost earnings
• $1,800,000 for future loss of earning capacity
• $8,000,000 for past pain and suffering
• $4,500,000 for future pain and suffering

The total amount, however, was substantially reduced to the upper limit of a high/low stipulation.

Expert Specialties

The plaintiff retained expert witnesses in

• Economics
• Infectious Diseases
• Neurosurgery
• Physical Rehabilitation

The defendants retained expert witnesses in

• Neurosurgery
• Infectious Diseases

Key Takeaways

The most interesting aspect of Daniel Sullivan’s case is that the plaintiff’s claims revolved solely around post-operative care and the resulting infection. In fact, the plaintiff readily claimed that the surgery resolved the original issues for which he sought treatment. Although defense counsel argued that the plaintiff’s pre-existing condition was the cause of his pain, it appears the jury did not find this argument persuasive, perhaps in light of the plaintiff’s own concession that the surgery appeared to be successful. Sullivan’s case is an important reminder to attorneys on both sides that post-operative care and any infections that may occur can often be its own issue that can very well be successful, despite the actual operation adhering to all necessary standards of care.