Our Record of Success

Malak v. Defendant Pain Management Specialist

On April 16, 2010, a Cook County jury returned a defense verdict for a pain management specialist represented by DBMS.

Plaintiff’s decedent, a 52-year old married mother of four children who worked as a secretary at the local high school, underwent an elective cervical epidural steroid injection performed by the firm’s client, a pain management specialist, to treat neck and arm pain caused by degenerative arthritis.

The co-defendant anesthesiologist provided conscious sedation for the injection, which was scheduled to be an outpatient procedure. There were no apparent complications noted during the procedure and the patient was transported to the recovery room per wheel chair in stable condition at 11:55 a.m. The patient was able to move into a recliner chair and conversed with staff upon arrival to the recovery area.

A nurse briefly left the room to obtain a thermometer and when she returned to the patient’s bedsideat 12:00 to 12:05 p.m., the patient was unresponsive, cold to touch, pulseless and not breathing. A Code was called and the co-defendant anesthesiologist intubated the patient who was then transported by ambulance to a nearby hospital.

Upon arrival at the emergency department the endotracheal tube was found to be malpositioned and was replaced. The patient never regained consciousness and died the following day after being removed from life support. A

n autopsy revealed a mildly enlarged heart and a needle puncture to the dura (covering of the spinal cord) directly under the surgical area. The cause of death was noted as hypoxic ischemic encephalopathy due to hypoxia due to status post cervical epidural steroid injection.

Plaintiff claimed that our client negligently failed to recognize the puncture in the dura and inadvertently injected Lidocaine into the subdural space, causing a delayed “high spinal” effect which caused the cardiopulmonary arrest in the recovery room. Plaintiff also proceeded against our client only under a theory of res ipsa loquitur, which permits a rebuttable presumption of negligence where the event ordinarily would not occur in the absence of negligence and the instrumentality that caused the injury is under the defendant’s exclusive control.

Plaintiff further claimed that the co-defendant anesthesiologist negligently misplaced the endotracheal tube in the esophagus, contributing to cause the death. The plaintiff’s expert admitted under cross-examination that a puncture of the dura can occur absent negligence but testified that the defendant should have recognized it.

The defense argued that there was no indication of a puncture of the dura during the procedure, fluoroscopy images confirmed the needle was properly placed in the epidural space, there was no evidence that anything was injected into the subdural space, and Lidocaine was used only to numb the skin prior to the procedure and therefore could not have found its way into the subdural space.

The defense further argued that the cardiopulmonary arrest occurred due to a sudden cardiac arrhythmia caused by hypertensive cardiovascular disease with left ventricular hypertrophy in a patient in the post-operative state. Counsel for the co-defendant argued that the patient suffered irreversible brain injury prior to the resuscitation, the endotracheal tube was properly placed by the anesthesiologist as confirmed by multiple observers, and the tube most likely became dislodged during transport to the hospital.

In closing argument, plaintiff asked the jury to award $8 million. After deliberating for several hours, the jury returned a not guilty verdict in favor of our client but found against the co-defendant for $2.91 million.