Sample Case
December 7, 2007 Verdict against Dr. Thomas Milhorat, Director of Neurosurgery at North Shore University Hospital, and against Dr. Paolo Bolognese of the Chiari Institute of NorthShore University Hospital
Verdict (P) $1,000,000.00
Court Queens Supreme
Judge Kevin J. Kerrigan
Date 12/7/2007
Plaintiff Attorney
Mark L. Bodner, Mark L. Bodner, PC, New York, NY
Defense Attorney
John L.A. Lyddane, Martin, Clearwater & Bell, New York, NY
Facts & Allegations
On March 24, 2003, decedent, was admitted to North Shore University Hospital in Manhasset, New
York to undergo elective surgery to correct damage from rheumatoid arthritis of the cervical spine. He died
on April 26, 2003.
Decedent had a history of bilateral hip replacements, osteoarthritis, and rheumatoid arthritis. In
2002, he began to experience four-limb weakness, neck stiffness, and right hand spasms. As a result of
imaging with MRI and CT scans, he was advised to undergo surgery to halt progression of cervical spine
disease. He first consulted with Dr. Nancy Epstein, a neurosurgeon associated with North Shore University
Hospital. She recommended surgery, with specific referrals to either of two Manhattan spine surgeons: orthopedist
Dr. Patrick O’Leary of Hospital for Special Surgery, or neurosurgeon Dr. Paul McCormick of New York-
Presbyterian Hospital. Not able to get an appointment with Dr. O’Leary, decedent consulted with North Shore
neurosurgeon Dr. Kevin Tracey who in turn suggested surgery by Dr. Milhorat.|
On March 27, 2003, decedent underwent anterior transoral odontoidectomy with resection of
pannus (scar-like tissue) on the cervical spine. That surgery destabilized decedent’s cervical spine, requiring a
second surgery to stabilize the cervical spine with hardware. On March 31, he underwent posterior fixation
with wiring and cadaverous bone graft fusion.
Defendant Dr. Thomas Milhorat, Director of Neurosurgery at North Shore, performed the two
procedures. Dr. Milhorat and defendant Dr. Paolo Bolognese provided post-operative care.
A post-operative infection developed after the second surgery. On April 5, 2003,decedent’s neck
wound from the second surgery was leaking profusely, a potential sign of infection. Defendant Dr. Paolo
Bolognese asked a physician assistant to tap the wound. The physician assistant testified at deposition that
she obtained three to four cc's of fluid, and then threw the fluid “in the garbage” without testing it. Over the
course of the next four days decedent became increasingly ill with rising white blood cell counts, elevated
temperatures, and mental status changes. Antibiotics were not administered until April 9, when an
infectious disease consultant was called. Decedent then underwent surgery to remove all of the hardware
placed during the March 31 procedure.
Decedent’s family alleged that decedent became a quadriplegic as a result of an infection causing compression
of the spinal cord. After 13 days of being able to communicate only with an eye board, Decedent consciously
elected to die on April 26, 2003 by directing withdrawal of his ventilation support.
Decedent’s family, as executor of his estate, sued North Shore University Hospital, Dr. Milhorat, Dr.
Bolognese, and Dr. Richard Johnson, who assisted at the surgeries, for medical malpractice. Dr. Johnson
received a stipulation of discontinuance.
Decedent’s family claimed that defendants Milhorat and Bolognese negligently failed to timely diagnose and
treat a post-operative infection causing permanent total paralysis (quadriplegia). Decedent claimed that the
defendants negligently failed to re-tap the wound once the tapped fluid was thrown out. Decedent also
claimed that Milhorat negligently performed the wiring fixation, causing some spinal cord damage and
right-sided weakness. Decedent’s family also claimed that North Shore was vicariously liable for the actions of
Milhorat and Bolognese.
Decedent’s family alleged that Dr. Milhorat, eight months after the death and four months after dictating a
discharge summary, added in his handwriting to the last paragraph of the discharge summary that decedent
died from “a massive pulmonary embolism” as a result of an event on April 15, 2003 which was the cause of
the patient’s poor postoperative outcome. Decedent also alleged that Milhorat made this change four to six days after
being served with a summons and complaint for this action. An autopsy performed privately by decedent’s family on
April 27, 2003, revealed that there was no pulmonary embolism and that the spinal cord showed evidence of trauma
and/or infection.
Defense counsel argued that decedent had a very fragile spine from advanced rheumatoid arthritis;
that the surgery was very dangerous, including risks of quadriplegia, infection, and death. Defense counsel
also argued that the surgery was done within the standard of care, that the infection began early in the
course of hospitalization, and was not diagnosable or treatable until April 9, 2003, when all of the hardware
was removed.
Dr. Bolognese testified that the physician assistant had made multiple attempts to tap the neck
wound, and that any sample obtained was thereby contaminated. There was nothing noted in the medical
records regarding such attempts. Dr. Bolognese also testified that there was a protocol at North Shore for
sending wound aspiration sampling to the lab for analysis if the wound is not contaminated. Dr. Bolognese
admitted that the infection was at least in part responsible for the patient becoming paralyzed.
Dr. Bruce Farber, Director of Infectious Diseases at North Shore, testified on behalf of the
defendants that, despite increasing white blood cell counts including a shift to the left and elevated band
count, interpreting the laboratory date for decedent at that time was like "reading tea leaves". The basis for
his opinion was that decedent was taking decadron, a corticosteroid. Decedent’s family alleged that the abnormal blood
counts rose as decadron was being weaned, and that decadron is known to have no effect on a shift to the
left with elevated band counts, and that decadron masks the signs and symptoms of infection, making
crucial the submission of wound fluid for analysis.
Injuries/Damages
Quadriplegia
Decedent’s family claimed that spinal cord infection caused quadriplegia (total paralysis). Defendants never requested a demand to settle the case. Decedent’s family sought an unspecified amount in damages from the jury for the decedent's pain and suffering.
Result
The jury found that the defendants were liable to decedent for the failure to diagnose and treat postoperative infection. The jury found that Dr. Milhorat did not negligently perform the March 31 surgery. It determined that plaintiff's damages totaled $1,000,000.
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