Court tosses $7M judgment awarded to patient paralyzed after spine injection at ASC

The Colorado Court of Appeals reversed a $7 million judgment against Surgery Center at Lone Tree (Colo.) on Oct. 15, saying the ASC should not have been held vicariously liable for a spine surgeon's alleged malpractice.

Plaintiff Robbin Smith lost all feeling in her lower extremities after receiving "a bilateral S1 L1-L2 transforaminal steroid injection using the particulate corticosteroid Kenalog" at Surgery Center at Lone Tree, according to court documents. Ms. Smith was later diagnosed with bilateral lower extremity paraplegia secondary to spinal infarct/ischemia and is permanently paralyzed below the waist.

She and her husband, Doyle Edward Smith Jr., filed a lawsuit against three defendants: the spine surgeon who performed the epidural, SpineOne Spine & Sport Medical Clinic, and Surgery Center at Lone Tree, where the injection took place.

However, only the claims against the ASC proceeded to trial. Claims against the spine surgeon were settled before trial, and claims against Lone Tree-based SpineOne Spine & Sport Medical Clinic, which is the surgeon's employer, were dismissed.

During trial, the plaintiffs alleged Surgery Center at Lone Tree had an obligation to either prevent its surgeon's off-label use of Kenalog, which they believe contributed to Ms. Smith's paralysis, or ensure Ms. Smith had given her informed consent to its off-label use.

After an eight-day trial, a jury ruled in favor of the Smiths and awarded them $14.9 million in damages. The trial court reduced the amount of the verdict to roughly $7 million. The ASC appealed the jury's ruling, and the Smiths cross-appealed the reduction in damages.

Citing Colorado's corporate practice of medicine doctrine, which "prohibits healthcare facilities from controlling a physician's independent professional judgment regarding the practice of medicine, diagnosis or treatment," the Colorado Court of Appeals reversed the trial court's judgment and remanded the case for judgment in favor of Surgery Center at Lone Tree.

"We conclude that the trial court should have dismissed the corporate negligence and uninformed consent claims against [Surgery Center at Lone Tree] as a matter of law because, under the corporate practice of medicine doctrine, [Surgery Center at Lone Tree] was not vicariously liable for any malpractice" by the operating surgeon, nor was the ASC obligated to assume any medical responsibilities the surgeon failed to fulfill, the Colorado Court of Appeals said.

The court also dismissed the Smiths' claim for negligence per se, on the grounds that state licensing and federal Medicare regulations weren't enacted primarily for public safety reasons.

Click here to view the court decision.

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