Nerve surgery goes beyond consent of patient. $1 million. Orange County.
After a piriformis release surgery (left buttocks), plaintiff claims doctor performed an unconsented to and unnecessary second procedure on her left lower leg; claims medical negligence, battery and fraud.
- Case Name: Nadine Froesch v. Israel P. Chambi, M.D., et al.
- Court and Case Number: Orange County Superior Court / 30-2013-00680714
- Date of Verdict or Judgment: Wednesday, February 03, 2016
- Date Action was Filed: Thursday, October 10, 2013
- Type of Action: Fraud, Medical Malpractice
- Judge or Arbitrator(s): Hon. Kirk Nakamura
- Plaintiffs: Nadine Froesch
- Defendants: Israel P. Chambi, M.D.
- Type of Result: Jury Verdict
- Gross Verdict or Award: $1,000,000
- Award as to each Defendant:
Medical Negligence: $200,000
Medical Battery: $500,000
- Trial or Arbitration Time: 9 days.
- Jury Polls: Medical negligence: 10-2; medical battery: 10-2; fraud: 9-3.
- Post Trial Motions & Post-Verdict Settlements: Judgment was entered on March 3, 2016, and defendant has filed a Motion for New Trial which is set to be heard on May 6, 2016.
- Attorney for the Plaintiff:
Hunt & Adams, Inc. by John C. Adams III, Santa Ana.
Law Offices of Thomas D. Rowley by Thomas D. Rowley, Laguna Hills.
- Attorney for the Defendant:
Herzfeld & Rubin LLP by Michael A. Zuk, Los Angeles.
- Plaintiff’s Medical Expert(s):
(All treating physicians):
Janos Ertl, M.D., reconstruction surgery, Indianapolis, IN.
Nader Pouratian, M.D., neurosurgery, Los Angeles.
Patricia Ahearn, M.D., primary care, San Juan Capistrano.
Chad R. Marquis, C.P.O., prosthetics, Orange.
- Defendant's Medical Expert(s):
Aaron G. Filler, M.D., neurosurgery, Santa Monica.
Facts and Background
- Facts and Background:
Plaintiff, Nadine Froesch, is a 49-year-old female who suffered a below-the-knee amputation as the result of a horrific automobile accident, caused by a drunk driver when she was 20 years old. On October 19, 2012, the date the instant surgeries were performed, Ms. Froesch was a single mother raising her then 2-year-old daughter.
In 1999, Ms. Froesch had gone to defendant, Israel P. Chambi, M.D., an Orange County neurosurgeon, for a “right piriformis release” surgery, which relieves severe buttocks pain when it is caused by the piriformis muscle (in the buttocks area) compressing (entrapping) the sciatic nerve. Dr. Chambi previously performed this surgery in 1999 without complications, and plaintiff’s right buttocks pain promptly resolved.
In 2012 Ms. Froesch experienced the exact same “piriformis syndrome” (in her left buttocks); she returned to Dr. Chambi for the same piriformis release surgery, only this time as to her left buttocks.
Plaintiff testified that she saw Dr. Chambi in his office only one time (on 8/28/12) for an initial consultation as to her left buttocks pain, and that on that one, initial office visit, there was no discussion about anything to do with her left residual leg. The visit dealt solely with her having another piriformis procedure (like Dr. Chambi had performed in 1999 on her right side) only this time on her left buttocks.
Plaintiff also confirmed that there never was any subsequent pre-operative office visit (or pre-op examination) or any additional discussions with Dr. Chambi before she appeared in the early morning hours of October 19, 2012 at the appointed surgical center for her left piriformis surgery by Dr. Chambi. Plaintiff also testified that at no time on the morning of October 19, 2012 did she see or talk to Dr. Chambi before she was placed under general anesthesia at about 7:30 a.m.
Upon awakening in the recovery room, plaintiff testified she was “horrified” and “shocked” to discover that in addition to an incision in her left buttocks, Dr. Chambi had also made an incision in the below-the-knee portion of her left residual leg.
Stunned, plaintiff immediately and hysterically repeatedly exclaimed to the nurse, “Why did he cut my leg? Why did he cut my leg?” At trial, the surgical nurse Patricia Robles testified that she had responded to plaintiff that the incision was made at the place on her left limb that had been marked by Dr. Chambi prior to surgery and to which she had consented.
Both plaintiff and her sister, who accompanied her on the day of surgery, testified that when Dr. Chambi returned to the surgery center, he immediately began to apologize for not discussing the additional procedure which required an incision below the left knee. However, Nurse Robles testified that she was with plaintiff when Dr. Chambi returned to the surgery center, and that she did not hear Dr. Chambi make any such statement or apology for “cutting” into plaintiff’s left residual limb.
Plaintiff’s extreme reaction resulted from the fact that she had just completed approximately two years of extensive, and painful reconstruction surgery on her left residual limb (“surgery known as the “Ertl procedure”) to prepare her residual limb for a permanent, custom-fitted prosthesis being fabricated at the time. Plaintiff contended at trial that the procedure performed by defendant, which involved a small lateral incision on her residual limb, had undermined her long recovery from the prior reconstructive surgeries, and forced her to undergo multiple additional surgeries to prepare her residual limb for the prosthesis fittings.
Plaintiff further testified that upon hearing Dr. Chambi “explain” that he had to cut into her left leg to “release” her peroneal nerve just below her knee, she informed Dr. Chambi that she no longer had a left peroneal nerve at that location as Dr. Ertl had surgically removed it during the reconstructive surgeries so that the new prosthesis could be worn without nerve pain in the area. Testimony by Dr. Chambi’s defense expert established that plaintiff still had sensation in the area enervated by the peroneal nerve and that part of it remained after Dr. Ertl’s surgery, causing her problems. Additionally, Dr. Chambi’s report of August 28, 2012 thoroughly documented a positive Tinel’s sign in the peroneal nerve below the knee establishing that there was peroneal nerve irritation which needed surgical attention.
Dr. Chambi also later claimed he had performed a “pre-op” examination in his offices on 10/18/12. When plaintiff requested from his office (several weeks later) a copy of his operative report and other records for Dr. Ertl (and her primary doctor, Dr. Ahearn) to review, included in his records was a copy of what purported to be a report of a 10/18/12 “pre-op visit” and clinical examination; which purported to document that Dr. Chambi had examined her left leg, lower leg and her left foot (which she didn’t have). This report indicated nerve responses and pulses in plaintiff's non-existent left foot on 10/18/12 and failed to note that Ms. Froesch was a below-the-left-knee amputee or that she utilized an artificial left lower leg and foot.
When plaintiff’s counsel later requested copies of Dr. Chambi’s same records, those records contained a different pre-op examination of Ms. Froesch in his office on 10/18/12 – only this second 10/18/12 report containing major changes from the first. This second 10/18/12 report did note that Ms. Froesch was a below-the-knee amputee on 10/18/12 and also edited out all references to Dr. Chambi having conducted and obtaining nerve responses, pain complaints, pulses and dorsi-flexion of her left lower extremity and left foot – all of which were claimed specifically in the original 10/18/12 pre-op exam.
Dr. Chambi admitted at trial that there had never been any pre-op examination or office visit on 10/18/12, and without explanation, claimed that these two conflicting and fabricated reports were just “a mistake.”
Dr. Chambi’s 10/19/12 operative report claimed that he located and resected 85% of plaintiff’s piriformis muscle and thereby purportedly relieved its pressure on the sciatic nerve. However, (unlike in 1999 on her right side) her left buttocks pain persisted post-surgery on 10/19/12 without improvement; and after almost one year she went for a re-evaluation at UCLA.
UCLA’s diagnostic examinations and radiological studies confirmed that Ms. Froesch still had left piriformis syndrome, and upon a repeat left piriformis release surgery at UCLA by Dr. Pouratian, it was confirmed that Ms. Froesch’s left piriformis muscle was not only still entrapping (compressing) the sciatic nerve, but it was “pristine,” totally intact, with no evidence of having ever been surgically touched.
Dr. Pouratian therefore removed 90-95% of Ms. Froesch’s still fully intact piriformis muscle in order to decompress the sciatic nerve. After the repeat left piriformis procedure, plaintiff had prompt and permanent post-surgical relief of her left buttock nerve pain.
- Plaintiff's Contentions:
Plaintiff sued Dr. Chambi for (1) “medical negligence” (regarding the unsucessful 10/19/12 left piriformis procedure), (2) “medical battery”/lack of consent for the unconsented to and medically unnecessary and unjustified incision into plaintiff’s left lower leg (also on 10/19/12), and (3) for fraud in concealing his apparent, but undisclosed, pre-surgical intention of performing a left peroneal nerve decompression of her left leg below the knee without disclosing that to Ms. Froesch any time before surgery on 10/19/12 (in order to bill for an additional, unnecessary and unconsented to second surgery.
- Defendant's Contentions:
1) That Dr. Chambi performed the 10/19/12 left piriformis release procedure within the standard of care by removing a large portion of the piriformis muscle, and that the alleged negative outcome of the procedure (plaintiff’s claimed failure to attain pain relief) is not below the standard of care. (Pre- and post-operative MRI images of the piriformis muscle presented at trial demonstrated a reduction in size of the piriformis muscle subsequent to the piriformis release performed by Dr. Chambi on October 19, 2012.)
2) That the left peroneal nerve decompression performed on Nadine Froesch on 10/19/12 was medically justified and was consented to; that Nadine Froesch signed an Informed Consent for the procedure and that Dr. Chambi did not commit medical battery by performing the consented to procedure.
3) That Dr. Chambi did not commit fraud in that on August 29, 2012, prior to surgery on October 19, 2012, Dr. Chambi fully discussed peroneal nerve decompression with Nadine Froesch and disclosed to Nadine Froesch his intention to perform a left peroneal nerve decompression on October 19, 2012.
That no evidence was offered by plaintiff at trial to support a finding that Dr. Chambi committed fraud by intentionally concealing from plaintiff his intent to perform a second procedure for the purpose of monetary gain. (Dr. Chambi was paid less than $300 for this surgical procedure.)
Demands and Offers
- Plaintiff §998 Demand: $875,000 on 5/14/14.
- Defendant §998 Offer: $0 - “No Authority”/"No consent."