In December 2010 two Kaiser Neurosurgeons knowingly and deliberately fused my cervical
spine with a medical device that was widely known to have a high rate of serious and/or fatal
complications. This operation was performed without my informed consent by misleading me
and deliberately omitting information. What occurred is so far below any agreed upon standard
of care, and the resulting injuries are so egregious, that an aggressive prosecutor might consider
charges of aggravated assault.
In early 2009 I had been diagnosed by a neurosurgeon on the faculty of Tulane University with
three compressed vertebrae that required an urgent two level fusion at c-6/c-7 and c-5/c-6. It was
to have been a standard procedure called an anterior laminectomy and fusion (ACDF) where in I
would have donated my own bone graft through a small incision in my hip. This diagnosis was
confirmed by an MRI and other tests. Yet State Compensation Insurance Fund (SCIF) refused to
pay for surgery alleging that I had not exhausted more conservative treatment, despite the fact
that I had already failed to improve after months of intensive physical therapy; which is the
prevailing standard of care.
I had already been receiving total work related disability checks since May 2008 as a result of
long term repetitive stress injuries. SCIF – the carrier of my workman’s compensation insurance
-- is a wholly owned subsidiary of the State of CA, who was also my employer. This dual
relationship is a violation of multiple federal laws. There is supposed to be a ‘firewall’ in place to
protect you from your employer directly accessing your medical records and interfering with
financial decisions related to covered benefits. This is clearly spelled out in ERISA and HIPPA
by the federal government to protect Americans from exactly this type of abuse. Yet the state of
CA has deliberately carved out a blatantly illegal loop hole for itself, designed to absolve itself of
paying for medical care and disability benefits for thousands of injured employees.
Legally SCIF was designed as a secondary entity. It is illegal to bring suit against a secondary
entity, you can only sue the primary entity, which in this case is the State of California, and you
are barred from suing a ‘government entity,’ so the State has exempted itself from any legal and
financial responsibility. A pattern has been set in place whereby SCIF has the privilege of
refusing to pay any and all of my medical claims on a routine basis regardless of medical
necessity, unless they are compelled by an administrative law judge. This process is so time
consuming and expensive that it has had the desired result of denying myself and a majority of
other State employees with catastrophic injuries both adequate legal representation and medical
care.
After the two level fusion was denied by SCIF in 2009 I began to deteriorate very rapidly. I was
in chronic pain and developed a range of serious neurological complications due to the
compression of multiple nerve roots between my cervical vertebrae.
I had no alternative other than to use my regular medical benefits with Kaiser, to cover repeated
trips to the Emergency Department for uncontrollable pain, after I was illegally denied care by
three major Los Angeles hospitals that refused to admit me due to my insurance coverage with
SCIF and contacted Kaiser. Finally my former work comp attorney transferred my work comp
benefits back to Kaiser, which had originally under diagnosed my injuries in their Employee
Health Clinic. The State of CA’s is one of Kaiser’s largest accounts for employee benefits and I
suspected that this relationship also had the potential to comprise the care I was receiving.
Fast forward to December 2010. By this time I had been worked up by Kaiser’s “A Team,” of
top neurologists who were totally disrespectful, and diagnosed me as a malingerer,
hypochondriac, psychiatric case and worse. In lieu of medical care I was referred to Kaiser’s
partial hospitalization program to treat my problems with speech, balance and bladder control as
a psychiatric condition. When I became understandably depressed over my inability to obtain
medical treatment this became a self-fulfilling prophecy. My neurological status deteriorated so
rapidly when I did not respond to psychiatric care that I was finally referred to a neurosurgeon.
The Kaiser neurosurgeon wanted to do a c-6/c-7 cervical fusion. He was younger and less
experienced than the outside neurosurgeon who had originally recommended the two level
fusion, and my symptoms had progressed so severely, that I questioned him as to why he was
proposing a more conservative procedure. I met with my work comp attorney to insist on a
second opinion, but it was in the weeks immediately prior to Christmas when most MD’s are out
of the office, and I was told that if I did not agree to the single level fusion within a matter of
days SCIF would revoke the authorization. The only second opinion I was able to obtain this
quickly was from another Kaiser Neurosurgeon who to my surprised concurred with his
colleague.
So I found myself undergoing an operation with a surgeon that I did not like or trust, and having
a procedure that I had no confidence in. But by this time my spine was so unstable that my head
was literally falling off my neck. I was fearful that I could become paralyzed or develop fatal
complications if the surgery continued to be postponed. I reasoned that it seemed better than
doing nothing. The neurosurgeon told me repeatedly that he was “doing me a big favor” by not
performing the two level fusion. I later learned that the recovery time was almost identical and
the medical device he chose could only be used on one level.
During the informed consent process the surgeon was very casual. When he neglected to mention
the type of bone graft that would be used I became alarmed. I knew that the alternatives were
either a donated cadaver graft (which carried a disease risk) that I planned to refuse, or to have
bone harvested from my hip. The surgeon laughingly told me that I had nothing to worry about.
He was doing me another “favor.” A bioengineered substitute had just been approved. He was
going to use this wonderful new device to spare me from having to undergo the hip procedure as
well. I had never heard of this “new” product so I asked him if it was safe. He smiled and told
me that I had nothing to worry about.
What he did not tell me was that he planned to use a Medtronic BMP-2 implant and plate that
carried a black box safety warning from the FDA. As a health care professional I was very
familiar with the meaning of ‘black box warning’ and would never have given consent. The
Medtronic device was also being used ‘off label’ (meaning it was not FDA approved for this
purpose) and I was familiar with these implications as well, and again would have denied my
consent. Finally by the time I had this surgery the Medtronic BMP-2 device he planned to
implant was so widely known to be dangerous and defective that an entire issue of “Spine,” the
major medical journal for neuro and orthopedic spine surgeons had devoted an entire issue to this
problem several months ago. It had been approved by the FDA for lumbar (low back) surgery
but had such a high rate of deaths and complications that Spine had gone to the extreme in
warning surgeons about the dangers of this devise, especially in cervical fusions.
There are now class action law suits pending against Medtronic for promoting the device for off
label use, as well as the serious medical complications related to the BMP-2 device which
Medtronic ignored and knowingly continued selling. My case has been denied by every lawyer
participating in the class action cases, because my surgery was done at such a late date that it can
only be considered medical malpractice.
Following the surgery I began to develop complications. The symptoms that the surgery was
supposed to treat were recurring and I was also experiencing new neurological symptoms. In a
review of the literature, new neurological symptoms are found in less than .002 percent of
patients when this relatively low risk routine procedure is done properly. I contacted the
neurosurgeon and he told me that again he would “do me a favor.” Most patients did not get
follow up for two years but in my case he would order an MRI after only six months. Following
the MRI when I saw him in the Hollywood medical center he was so belittling that I left the
office in tears.
Last March of 2013 I was finally diagnosed by an orthopedic surgeon who was not affiliated
with Kaiser by a simple X-ray as having a pseudo-arthosis or false fusion. Additionally when this
was confirmed by multiple MRI’s the radiologist discovered that the screws had loosened and
were falling out of the plate resulting in the intense pain I was experiencing.
I was told by two new orthopedic surgeons that this would require an urgent “revision” to correct
the damage from the failed Medtronic device, as well as the collateral damage. SCIF repeatedly
refused to pay for the emergency surgery, but quickly agreed to pay for a consultation with a
famous Los Angeles orthopedic surgeon. After examining me and reviewing my medical records
I was shocked when over two months later he finally produced a report with equivocal findings
that could be viewed as favoring the insurance company.
I have an extensive report from an outside neurologist documenting that I was suffering from
Stage IV (end stage) pain which is typically associated with cancer patients. The neurologist
referred me to anesthesiologist with a specialty in pain management. I told him that I was so
motivated to find an alternative to narcotics that I would agree to any alternative that provided
permanent relief. SCIF denied prior authorization so many times that the office manager refused
to speak with me regarding scheduling an appointment.
By January of 2013 the pain was so excruciating that I was placed on Morphine 15 mg bid by a
pain management specialist at Kaiser who was an Internist. He was running late and saw me for
less than fifteen minutes. He told me that after the surgery I would be tapered off the morphine. I
had clean urine drug screens and every month I was given a prescription by for Morphine.
I expected to be admitted to Cedars Sinai Medical Center where the orthopedic surgeon
supervising my care had privileges. Every month I was told I was going to be admitted for
surgery and every month either Cedars denied me admission or SCIF balked at paying for the
operation. The fact that I had been employed by Cedars Sinai Medical Care Foundation for many
years as a poorly paid clinician, and now I was being turned away by this charitable Jewish
hospital because they did not like the reimbursement rate was ironic. They had diagnosed me in
the Emergency Department with a “spinal cord injury” in May 2013, yet still refused to admit me
because they did not like my insurance coverage. Instead Cedar’s discharged me with a
potentially life threatening medical condition, and advised me to follow up with my surgeon.
I was finally admitted to a free standing seventeen bed surgical center that was virtually empty
on June 23rd of 2013. I underwent a risky seven hour operation that has probably never been
performed outside of a major medical center before and it is my hope it never will again. The
surgeon was able to remove the Medtronic plate and screws which he returned to me just as he
promised. He told me that the operation was even more extensive than he expected. I now have a
cervical spine fusion from C-7 through C-4 which requires that the instrumentation be mounted
on C-3. Above C-3 as you approach C-2 and C-1 the spinal cord becomes the brain stem which
is a no go zone. C-1 is known as the ‘hangman’s vertebrae’ in trauma centers. It is the last
vertebrae which experience executioners are trained to aim for, and accidental injuries are
usually fatal.
The fact that such a delicate operation had to be performed under conditions resembling a field
hospital in Afghanistan, at unnecessary risk to my life and the gifted young surgeon’s license and
financial future, just two miles down the road from Cedars-Sinai, where the paramedics would
have brought me had anything gone wrong is completely shameful. Because of greed and
corporate corruption my surgery was performed without prior authorization from SCIF, and my
lawyer who is another heroic young man had to sue SCIF for the surgeon’s fees. A neurosurgery
performed under these conditions, ipso facto could only be performed without prior authorization
because such an operation entails such extraordinary and unnecessary degree of risk to the
patient that no medical insurance carrier would ever provide prior approval due to the legal
ramifications. In my case I survived a major operation under what may be less than battlefield
conditions as it was my only alternative to impending death or quadriplegia. In addition to being
paralyzed from the neck down I was also in danger of becoming permanently dependent on a
ventilator to breathe. I owe my life to my surgeon and my attorney, as well as my medical
training, and determination to fight the system.
If I had not had extensive academic medical training, worked as a hospital administrator and
utilization manager for a major insurance carrier and HMO I doubt that I could have survived
and been able to tell this story. It is an uncommon combination that is rarely found even among
health care professionals.
I have been largely confined to my own home due to my medical condition for over five years. I
have literally become a prisoner living under house arrest for the crime of getting injured at
work; this has caused me to almost lose hope at times. All of my attempts to obtain a medical
malpractice attorney have failed. Although my case would have easily settled for between $2 and
$5 million dollars five years ago, attorney’s are no longer accepting “spine” cases in California
due to what amounts to professional collusion engineered by the College of Neurosurgeons;
instead of performing its mandated function as a professional licensing board, the College’s main
mission now seems to be to enforce a mafia-style code of silence in which no neurosurgeon in
the state of California will testify against a peer regardless of how incompetent or corrupt his/her
behavior is. This behavior (protectionism and extortion) is defined as racketeering; and in other
organizations has been successfully targeted by the FBI under RICCO laws. Despite the fact that
this problem is widely known, and has even been the subject of news stories, State and Federal
agencies have allowed it to continue.
The other obstacle facing me has been Kaiser itself. There is no longer any medical malpractice
attorney in California left who is willing to consider going up against this medical behemoth
regardless of the egregiousness of the patient’s injuries, or the obvious merits of the case. I was
told six months ago by a ‘med mal’ lawyer, as these attorneys are known in the field, that if I
could get a surgeon willing to testify he would represent me. Now I have the surgeon’s testimony
and the physical evidence but the legal climate in the plaintiff’s bar has become so chilled that no
one will step forward.
Several months ago I gave up and decided to go through Kaiser’s mandatory arbitration process
which caps the patient’s recovery award at $300,000 minus attorney’s fees and other costs. Then
I learned that even this avenue was closed. Attorneys in California will no longer even accept an
arbitration cases against Kaiser. Word on the street has it that the arbitration panel is so stacked
in Kaiser’s favor with handpicked mediators that it is impossible to obtain a financial judgment
no matter how strong a case can be built based on the evidence related to a patient’s injuries.
At the present time I am still without legal representation despite a mountain of evidence. My
only avenue of recourse has been to file complaints with the California Medical Board against
the two neurosurgeons who performed the surgery in 2010 for malpractice and professional
misconduct. I sent my complaint to the Medical Board by FedEx and it was signed for on
September 17th 2013. A month has passed and the Board is still unwilling to formally
acknowledge the receipt of the paperwork. I have received no written notice, they generally do
not answer the telephone, and on the rare occasion when I have spoken with an analyst they have
told me that “there is no record of my name in the system, and I should be patient because people
are ahead of me.” In the meantime the two neurosurgeons are continuing to endanger the public.