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Ruling boosts suit over botched spinal surgeries

Copyright © 2017 Albuquerque Journal

Ann Berry suffered through years of incapacitating pain, weakness, and bowel and bladder dysfunction after undergoing an unorthodox bone-cement spine treatment in 2008 invented by an Alamogordo doctor who turned out to have bogus credentials.

In 2009, the “fiesty” Berry endured a 10-hour operation in El Paso in which a different physician tried to remove the cement that had leaked into her spinal canal and damaged her nerve roots, her attorney said last week.

But she didn’t live long enough to see her medical malpractice lawsuit fully resolved against those she claimed were responsible for her debilitating injuries.

Berry, 75, died of cancer in September in Kentucky. Meanwhile, the litigation filed on behalf of her and dozens of others who received the dangerous treatments has plodded through federal Bankruptcy Court for the past five years. And there’s no end in sight.

Lisa Curtis

Attorney Lisa Curtis

Judge Robert H. Jacobvitz

Judge Robert H. Jacobvitz

“I am really very sad that the tremendous delay in this case caused her not to see its end,” said Berry’s attorney, Lisa Curtis of Albuquerque. “While she has tremendous kids, I wanted her to feel some justice at the end of this.”

Just before Christmas, Chief U.S. Bankruptcy Judge Robert H. Jacobvitz of New Mexico ruled that a national hospital management firm could have spared the unwitting patients from harm beginning in September 2007 – a year before Berry’s surgery – by ordering an outside investigation into the German-born Dr. Christian Schlicht and his bone-cement procedure.

Jacobvitz found that Tennessee-based Quorum Health Resources, which was hired by Gerald Champion Regional Medical Center for nonmedical services, was 16.5 percent at fault in the bone cement cases. The hospital, Schlicht and a hospital orthopedic surgeon shared the majority of the blame, he found.

The ruling is an important legal victory for the former patients, whose negligence claims stalled after the hospital, which hired Schlicht, filed for bankruptcy in August 2011, citing the onslaught of lawsuits.

The plaintiffs at one point numbered 101, including spouses. Since then, nine have died and two lengthy Bankruptcy Court trials determining liability have occurred without any actual damages being awarded.

Quorum Health Resources is the sole remaining defendant in the bankruptcy case. An attorney for the company didn’t respond to a Journal request for comment last week.

In 2012, the plaintiffs entered a partial settlement of about $33 million with several parties, including the hospital, Schlicht and $11.5 million from Dr. Frank Bryant, the orthopedic surgeon and then-chief of staff at Gerald Champion who teamed up with Schlicht to perform some of the bone cement procedures.

The New Mexico Medical Board in 2012 accused Bryant of “gross negligence,” citing the cement procedures and other botched surgeries on five patients from 2007 to 2011. He was formally reprimanded. Last year, the medical board cleared the way for Bryant to resume practicing medicine after he completed a competency assessment program for orthopedic surgeons.

This is a sample of the kind of bone cement used in an "experimental" procedure that led to complications and injuries in dozens of patients at an Alamogordo hospital. (Dean Hanson/Albuquerque Journal)

This is a sample of the kind of bone cement used in an “experimental” procedure that led to complications and injuries in dozens of patients at an Alamogordo hospital. (Dean Hanson/Albuquerque Journal)

Bryant, who contends he was also duped by Schlicht, has relocated to Roswell. He told the Journal on Friday that he has undergone additional medical training, has had no complaints from current patients or negative peer reviews, and believes he is a better surgeon than before.

“I feel terrible about what happened to these patients,” Bryant said. “If you don’t think I didn’t spend sleepless nights for years. I had a lot of these patients. They trusted me. To see them go through that is like being stabbed in the heart.”

‘Dangerous risks’

Berry’s lawsuit says that Bryant had performed a spine fusion on her in 2002. When she began to have increasing pain in 2008, Berry returned to see Bryant. He and Schlicht scheduled her for surgery to remove the old hardware and fill the empty disc space with a hot liquid plexiglass-like cement.

Such “experimental” use of the of the cement for lower-back surgeries wasn’t supported by medical literature and “subjected patients to dangerous risks,” Jacobvitz wrote in his Dec. 23 ruling.

In Berry’s case, an El Paso surgeon could remove only some of the cement, her lawsuit says.

Jacobvitz, in his ruling, found that a CEO assigned to the hospital by Quorum was told in mid-2007 about concerns of an outside physician who evaluated Schlicht’s annual performance. That outside physician reported that Schlicht was not a spine specialist, was conducting experimental surgery and was practicing beyond his scope of expertise, the ruling says. Such an adverse report was “very unusual,” the judge wrote.

But the CEO and hospital medical staff dismissed the physician’s concerns as being “motivated by a business deal with Dr. Schlicht that did not end well.”

Bryant and Schlicht “convinced members of the medical staff that the … procedure was safe,” the judge wrote. No further investigation ensued.

“Because an assertion that a Hospital-employed physician is improperly performing ‘experimental surgery’ is so explosive, and if true, could create serious problems for the Hospital, the CEO was obligated under (Quorum’s) policies to report the assertion … to an off-site team,” Jacobvitz wrote.

That action ultimately could have stopped the procedures and led to Schlicht’s firing, the judge wrote. Instead, Schlicht, who had earned $450,000 in 2007, resigned in late 2008 in a pay dispute with the hospital.

Before leaving New Mexico, Schlicht confessed to Bryant that an error in translation of German documents he submitted to Gerald Champion overstated his medical training. Jacobvitz found that Schlicht “deliberately set out to mislead the Hospital and medical staff about this credentials.”

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