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Charles Malmberg v. United States of America

May 3, 2011


The opinion of the court was delivered by: Scullin, Senior Judge



On or about September 15, 2006, Plaintiff filed this action pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq., for injuries he sustained on or about November 4, 2004, during the course of an anterior cervical discectomy with fusion ("ACDF") at the Syracuse Veterans Administration Medical Center ("SVAMC"), in Syracuse, New York.

The Court held a bench trial from April 12, 2010, through April 14, 2010, and April 26, 2010.*fn1 At the trial, Plaintiff called as witnesses Dr. Satish Krishnamurthy, the surgeon who performed the surgery at issue, and as an expert Dr. Morris Soriano.*fn2 In addition, Plaintiff introduced the video deposition of his primary care physician, Dr. Hunsinger, and read into the record a portion of the deposition testimony of Dr. Donald Blaskiewicz, a surgeon who assisted with the surgery at issue. Defendant called Dr. Brian Cooney, a radiologist and employee of SVAMC, and Dr. Edward Dunn as an expert witness.

At the conclusion of trial, Defendant moved pursuant to Rule 52(c) of the Federal Rules of Civil Procedure for a judgment on partial findings, arguing that Plaintiff had failed to establish negligence and causation. The Court reserved decision on the motion and directed the parties to file proposed findings of fact and conclusions of law no later than forty-five days after receiving the trial transcript.

Having reviewed the parties' post-trial submissions as well as the trial transcript, the Court denies the Rule 52(c) motion and makes the following findings of fact and conclusions of law.


A. General information regarding ACDF surgeries

1. On November 4, 2004, Plaintiff underwent an ACDF at the SVAMC to remove a degenerative disc and osteophytes causing an impingement at C5-C6.

2. An ACDF is a surgical procedure performed to remove a herniated or degenerative disc in the cervical (neck) spine. The goal of this procedure is to remove the herniated or degenerative disc, in addition to any other matter that might be pushing on the nerve roots or spinal cord, such as a bone spur or ligament, and then to replace the herniated or degenerative disc with a bone graft.

3. Discectomy literally means "cutting out the disc." A discectomy can be performed anywhere along the spine from the neck (cervical) to the lower back (lumbar). The surgeon reaches the damaged disc from the front (anterior) of the spine through the throat area. The surgeon accesses the disc and bony vertebrae by moving aside the neck muscles, trachea, and esophagus.

4. With the aid of a fluoroscope (commonly referred to as a "C-arm") -- a form of x-ray -- the surgeon passes a thin needle into the disc to locate the affected vertebra and disc.

5. To remove the damaged disc, the vertebrae above and below the disc must be held apart using some form of distraction. While there was a dispute among the experts as to the appropriateness of the distraction used in the present case, they in general did agree that there were various methods of achieving distraction when performing an ACDF. One such method involves using an instrument, referred to as a "distractor," such as a "disc space distractor." This method involves insertion of the instrument between the vertebrae to push the bone apart so as to achieve space or openness which is needed in order to remove the damaged disc and any material impinging on the nerve roots or spinal cord and to insert the graft. Another method of achieving distraction is referred to as "cervical distraction." That is accomplished by pulling on the head and neck in such a way, either manually or by some pulley system, so as to achieve the appropriate space or openness.*fn3

Once distraction is achieved, the outer wall of the disc (annulus) is cut; and the surgeon removes the damaged disc using small grasping tools. The surgeon must also remove the posterior longitudinal ligament ("PLL"), which runs behind the vertebrae, to reach the spinal canal. The surgeon then removes the disc material pressing on the spinal nerves, as well as any visible bone spurs.*fn4

6. Once the surgeon removes the damaged disc and any remaining bone spurs and PLL, the surgeon fills the open disc space with a bone graft. The graft serves as a bridge between the two vertebrae to create a spinal fusion. The bone graft and vertebrae are often immobilized and held together with metal plates and screws. Prior to closing the incision, an x-ray is taken to verify the position of the bone graft and the metal plate and screws.

B. Plaintiff's pre-surgical condition

7. Prior to surgery, Plaintiff suffered from symptoms primarily in his left arm, including weakness, numbness and tingling. See Dkt. No. 76 at 11. He did not, however, demonstrate symptoms associated with spinal-cord compression (myelopathy*fn5 ) or "long tract" signs. See id. at 12.

8. An x-ray and an MRI taken on March 25, 2004, indicated that there was a mild narrowing of the disc space at C4-C5. Plaintiff was diagnosed as having some impingement on the spinal canal at the C4-C5, C5-C6, and C6-C7 levels, with the most severe impingement at the C5-C6 level, causing a narrowing of the spinal canal (spinal stenosis). See Dkt. No. 75 at 21. There was mild disc-space narrowing and grade one retrolisthesis at the C5-C6 level (meaning that the C5 vertebral body was a little farther back in relation to the C6 vertebral ...

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