'Bombshell' testimony in bone cement malpractice case - Albuquerque Journal

‘Bombshell’ testimony in bone cement malpractice case

Copyright © 2017 Albuquerque Journal

A surprise witness has surfaced at the tail end of a protracted lawsuit that exposed how a New Mexico osteopath posing as a neurosurgeon injected patients with hot bone cement in an untested spinal procedure that was supposed to relieve pain but brought only misery.

The new testimony of pain management specialist Dr. Robert Zuniga of Albuquerque this summer is a “bombshell,” according to lawyers for former patients. But the national hospital management firm that ran Gerald Champion Regional Hospital in Alamogordo argues his deposition is confidential and should not be allowed as evidence in the case.

Zuniga has revealed that he was asked by a female hospital administrator back in 2007 to look at about a dozen charts of patients who had received the bone cement spinal injections. He said he was so alarmed by what he saw that he contacted the administrator and told her the procedure was dangerous and should be stopped.

“I don’t think I even finished doing a full review,” Zuniga testified at a recent deposition. “It was just so crazy to me that this was being done, that for patients’ safety, I just picked up the phone and said, ‘this is not right.’ ”

Zuniga also testified that he told the administrator he believed osteopath Dr. Christian Schlicht, who claimed he invented the bone cement procedure, wasn’t qualified to perform spinal surgeries.

Dr. Christian Schlicht

The information might never have come to light had one of the plaintiffs in the medical malpractice case not sought treatment from Zuniga for complications from her bone cement disc operation in Alamogordo.

Zuniga, of the New Mexico Pain and Spine Institute, was being deposed by lawyers in the case this summer about that patient when he suddenly volunteered that he had been consulted years earlier by a Gerald Champion hospital administrator whose name he couldn’t recall.

His testimony, if allowed, could reopen the corporate negligence aspect of the case, allowing more defendants to be considered for damages and potentially hiking the payouts.

Already, the hospital and Schlicht and others have paid out $33 million in settlements.

The hospital management company, Tennessee-based Quorum Health Resources, is the lone remaining defendant. Quorum furnished non-medical hospital administrators for Gerald Champion.

During one recent court hearing, Quorum attorneys claimed that Zuniga’s conclusions about Schlicht and the disc procedures reflected privileged communication gleaned through a “peer review” process and was therefore confidential by law. Yet, an attorney for the hospital has asserted that the hospital can find no evidence that such a peer review occurred.

A U.S. bankruptcy judge in Albuquerque is set to take up the issue on Monday.

Meanwhile, the Journal obtained copies of now-sealed documents that provide portions of Zungia’s account. The documents were available on the bankruptcy court website last Monday but by Tuesday had been sealed and were removed from public view.

Zuniga’s disclosure is the first indication in more than seven years of litigation that the hospital or Quorum ever sought an outside opinion about the safety of the spinal disc injections during Schlicht’s employment there.

Deposition testimony up to now has shown the hospital administration and medical staff back then dismissed the notion that Schlicht’s bone cement procedures were dangerous or experimental.

With Zuniga’s warnings, the hospital administrator involved should have immediately taken steps to halt the procedure in 2007, “preventing the horrific harm we now know was caused by these experimental procedures,” states a motion filed last week by attorneys who have represented the 100 so former patients and their spouses in the case. The bone cement procedures continued at least through 2008.

Schlicht left the hospital in November 2008 over a pay issue. Prior to his hiring at the hospital in 2006, Schlicht also used bone cement on patients at the VA Hospital in Albuquerque. He claimed at one point to have used bone cement injections on 300 patients with excellent results.

His former patients from Gerald Champion say they suffer intractable pain and weakness along with decreased mobility. Some were partially paralyzed or lost control of bodily functions. Others remain homebound. Several former patients have had follow-up operations to try to fix the botched surgeries or remove the pieces of cement. But many have been told repairs are too risky.

The litigation ended up in bankruptcy court when Gerald Champion hospital filed for bankruptcy in 2012. The consolidated bankruptcy case has entered the final phase to determine the nature and extent of damages of each plaintiff. Since Zuniga’s revelations, a mediation between the parties has been cancelled.

After leaving New Mexico in early 2009, court records show Schlicht continued the bone cement procedures after opening a medical practice in Colorado. By 2011, he was working as a U.S. Air Force senior flight surgeon in Japan but was later fired. It isn’t clear where he is living or whether he is still practicing medicine.

An osteopath, Schlicht claimed to have been board certified as a neurosurgeon. Records show he was a German-born anesthesiologist who had one year of pain medicine training and provided bogus credentials to get hired in Alamorgordo.

‘You need to stop’

Zuniga’s revelation came unexpectedly during his June 8 deposition about a patient he had treated who experienced excruciating pain, numbness and other complications since her 2008 bone cement surgery, court records show.

“Well, I think it’s only fair for me to explain something to you at this point,” Zuniga told lawyers in the room. “I know quite a bit about this case. And I don’t know if either of you know that. I think it’s prudent for me to mention that I reviewed a lot of these cases for the hospital at one point. Did you – were you aware of that?” Zuniga asked.

Zuniga stated he was contacted by an administrator at the Alamogordo hospital sometime in 2007 and asked to “look at approximately 12-15 patients’ charts where the patients underwent what she said was a new procedure, where cement was injected into their spinal discs. She asked me to tell her whether this was an accepted procedure within the medical community, and whether it was being done anywhere else.”

At the time he was the director of pain management services at the University of New Mexico Health Sciences Center.

He stated he reviewed “about three or four of these cases I was sent – this was many years ago, but I picked up the phone and I called the administrator and I said, ‘you need to stop this.’ ”

“So am I surprising both of you at this?” Zuniga asked plaintiffs attorney Greig Coates and Quorum lawyer Jack Klecan.

He stated he told the administrator he knew Schlicht “fairly well” because they both trained at University Hospital in Albuquerque.

“I told her that Dr. Schlicht was not qualified to do what he was doing,” Zuniga stated.

The bone cement substance, sometimes referred to as Plexiglas or PMMA, is used in certain spinal procedures in which it is injected into the bone, but not in the disc, Zuniga stated at a later deposition.

“What happened was I felt that this was such a risk to patients, that instead of doing a report, I think I called her up,” he stated.

The phone conversation ended fairly quickly after that, he added. “It was almost like I was disappointing her, in a way. So there was not much to say.”

Zuniga added he wasn’t contacted by the administrator again.

One of Zuniga’s former colleagues supported his account in a separate deposition in June.

Michael Palacio, a nurse practitioner now practicing in San Diego, recalled asking Zuniga about Schlicht some years back because they had been treating one of his former patients for complications related to the cement procedure.

“He (Zuniga) explained to me that, um, multiple people reviewed the record, including himself. And in his opinion, it wasn’t viable. … I was under the assumption that the neurosurgery group at (the University of New Mexico) also reviewed the records.”

Palacio testified that the consensus was the procedure was inappropriate.

“And the response from the (Alamogordo) administrators was, ‘Thank you very much,’ and that was it.”

New evidence

Attorneys for former patients believe the administrator Zuniga spoke to was CEO Sue Johnson-Phillipe, who approved hiring Schlicht in 2006. She worked as a Quorum employee at Gerald Champion hospital for nearly two years until she resigned abruptly in mid-July 2007 saying she wanted to spend more time with her family.

Johnson-Phillipe, who couldn’t be reached by the Journal last week, worked for a West Virginia hospital after leaving New Mexico. She has since retired.

During a deposition in March 2013, Johnson-Phillipe said during her stint at Gerald Champion she wasn’t aware that Schlicht was replacing lumbar disks in the spine with the Plexiglas-like bone cement. She also said there never came a time that she “became aware” that Schlicht was having an adverse effect on patients.

Plaintiffs in a recent motion are seeking to reopen the case, contending that the “newly discovered evidence … was actively concealed from the (plaintiffs), from all experts, from the (Gerald Champion board of directors) and all committees of Gerald Champion and from the court.”

During a hearing in the case in August, Coates characterized Zuniga’s revelations as “a bombshell.”

In the hundreds of thousands of pages produced by the hospital in the case, Coates told bankruptcy judge Robert H. Jacobvitz that, “not one of them talks about Dr. Zuniga’s involvement in any way, shape or form.”

Quorum, meanwhile, has insisted that Zuniga’s information constituted confidential information that falls under New Mexico’s medical peer review statute. Zuniga hasn’t backed up the peer review contention and no hospital medical staff have come forward to say they asked Zuniga for such a review or were aware of one.

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