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What happens when a spinal surgeon requires spinal surgery himself, and the spinal surgery is botched by the Virginia spinal specialist/physician he selected, leaving the injured surgeon with chronic pain syndrome? What happens is he retains a personal injury lawyer and a Virginia medical malpractice lawsuit arises and the spinal surgeon with serious spinal injuries casts aside every anti-tort, anti-medical malpractice argument he may have favored before the day he was permanently harmed! Ultimately, the Richmond State court Judge, in Garver v. Mathews, CL No. 07-206, ruled that defendant, Doctor Mathews violated medical standards, and awarded Dr. Garver $650,000.00 in damages, as explained below.

Dr. Eric Garver, a spinal surgeon/physician from Connecticut, traveled to Richmond, Virginia in 2005 and underwent surgery by Dr. Mathews, a spinal surgery specialist then based in the Richmond area who was the principal investigator for the Maverick ™ device and helped pioneer a spinal surgical procedure involving inserting the Maverick brand medical device in the spine—the device simulates the natural way vertebral discs move despite removal of the spinal disc between the bones of the spine, in contrast to traditional spinal fusion surgery, which often removes the jelly-like spinal disc, and “fuses” together spinal bone, reducing overall spinal mobility. The marketing angle of the Maverick brand device is that it largely preserves spinal mobility, whereas spinal fusion does not.

Dr. Mathews was at the cutting edge of back/spine surgeries involving the Maverick artificial disk device. According to published reports in Virginia Lawyers Weekly, a maverick device has two metal plates that fit into a patient’s disk space with a ball and a socket, and ball and socket is designed to maintain natural movement of the disk between the vertebral bone above and below the device.

However, Dr. Garver’s lawsuit (handled admirably by his Virginia and Washington, D.C. co-counsel) alleged that a bone disk fragment the size of an olive was taken out of Dr. Garver’s spine two weeks after the original surgery by a neurosurgeon conducting revision surgery in Connecticut. The Connecticut neurosurgeon who found the fragment, testified that at fragment of bone or disk was pressing against the nerve root in Dr. Garver’s back. Dr. Garver was left with chronic pain. Evidence came out during the trial that Dr. Mathews received consulting fees from the manufacturer of the maverick device, Medtronic, that were quite considerable. During 2004-2005, Dr. Mathews was paid $700,000 and by the end of 2006, Dr. Mathews gave up his own surgical practice entirely and now works full-time for Medtronic as a vice president.

Judge Markow, of the Richmond Virginia Circuit Court, issued a written opinion in which he found that Dr. Mathews had violated the standard of care in preparing for disk space for insertion of the Maverick artificial disc. The judge referred to the medical standard for this surgery that had actually been written in part by Dr. Mathews himself. The materials, in writing, stated that the disk space was to be meticulously cleared of materials that might be driven into nerves behind the disk space, by insertion of the artificial disc. The judge found that apparently, Dr. Mathews drove some material from the disk space into Dr. Garver’s nerve root on the right side near the L5-S1area involved in the surgery. Apparently, this caused permanent injury to the nerve resulting in chronic pain for Dr. Garver.

My take on this:

This case speaks volumes about our personal injury/medical malpractice system. This scenario would be like my law firm, Shapiro, Cooper, Lewis & Appleton representing a personal injury lawyer who was injured in a car accident. I know that I’d better give the best representation that I can, and work my butt off for my colleague! If I clearly failed to handle the case properly, I would expect my colleague to know about it and to know what to do-hold me liable!

Medical malpractice arises in many different ways and under many circumstances but it is hard to imagine that this particular incident could have happened had Dr. Mathews been using the care required of all spinal surgeons—whether inserting a Maverick device or simply conducting traditional fusion surgery. The tort/personal injury system in Virginia and all the United States that allows medical negligence lawsuits provides some measure of compensation for one who is permanently injured by the negligence of another. Many who argue strenuously in favor of roadblocks against medical malpractice suits, or who favor massive tort reform, have never been harmed themselves, or had a family member permanently injured. If so, they would sing a different tune.

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