united states bankruptcy court district …...las cruces, dona ana county, new mexico. case...

LA2243553.1218545-10001

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UNITED STATES BANKRUPTCY COURTDISTRICT OF NEW MEXICO

OTERO COUNTY HOSPITALASSOCIATION, INC.,

Debtor.

Case No. 11-13686-j11

Chapter 11

Adversary No.

CONSOLIDATED COMPLAINT FORMEDICAL NEGLIGENCE, NEGLIGENTHIRING AND CREDENTIALING, ANDRESULTANT DAMAGES

JUDY ANN FERGUSON AND OTISFERGUSON, individuals; LINDA HOEFLERAND VICTOR WILKERSON, individuals;JOEL CROSSNO AND VIVIAN CROSSNO,individuals; MICKIE FRANCIS, individual;MICHAEL MCCULLOUGH AND KARENMCCULLOUGH, individuals; KELLYROBBINS AND HERBERT ROBBINS,individuals; JEROME WARD, individual;RODNEY BUNSEN AND MARTHABUNSEN, individuals; EDNA MORTONAND ROYCE MORTON, individuals;THOMAS OLIVE, individual; SHIRLEYWALLS, individual; THERESA CRAWFORDAND CLARENCE CRAWFORD, individuals;LINDA MCKINNEY AND ARTHURMCKINNEY, individuals; BARBARAOLSON, individual; PAUL STRUNK,individual; and JANICE BERGERON,individual,

Plaintiffs,

v.

THE OTERO COUNTY HOSPITALASSOCIATION, INC. PERSONAL INJURYTRUSTEE as successor-in-interest to OTEROCOUNTY HOSPITAL ASSOCIATION, INC.d/b/a GERALD CHAMPION REGIONALMEDICAL CENTER; CHRISTIANSCHLICHT, D.O., FRANK BRYANT, M.D.;QUORUM HEALTH RESOURCES LLC;TRIAD HEALTHCARE CORP., TRIADHOSPITALS, INC.; CHS/COMMUNITY

Case 11-13686-j11 Doc 758 Filed 09/07/12 Entered 09/07/12 18:30:03 of 58

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1113686120910000000000001

Docket #0758 Date Filed: 9/7/2012

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HEALTH SYSTEMS, INC.; COMMUNITYHEALTH SYSTEMS PROFESSIONALSERVICES CORP.; AND WHITE SANDSHEALTH CARE SYSTEMS, LLC

Defendants.

TO THE HONORABLE ROBERT H. JACOBVITZ, United States Bankruptcy

Judge:

COMES NOW Plaintiffs Judy Ann Ferguson and Otis Ferguson, Linda Hoefler and

Victor Wilkerson, Joel Crossno and Vivian Crossno, and Mickie Francis, Plaintiff Michael

McCullough and Karen McCullough, Kelly Robbins and Herbert Robbins, Jerome Ward,

Rodney Bunsen and Martha Bunsen, Edna Morton and Royce Morton, Thomas Olive, Shirley

Walls, Theresa Crawford and Clarence Crawford, Linda McKinney and Arthur McKinney,

Barbara Olson, Paul Strunk, and Janice Bergeron (“Joint Plaintiffs”) herein and file this, their

Original Consolidated Complaint against the Otero County Hospital Association Personal Injury

Trustee as Successor-in-Interest to Otero County Hospital Association, Inc. d/b/a Gerald

Champion Regional Medical Center, Christian Schlicht, D.O., Quorum Health Resources, LLC,

Triad Healthcare Corp., Triad Hospitals, Inc., CHS/Community Health Systems, Inc.,

Community Health Systems Professional Services Corp., and White Sands Health Care Systems,

LLC (“Defendants”) and in support thereof with respect show the Court as follows:

I. THE PARTIES

The Joint Plaintiffs in this Adversary Proceeding, have standing to pursue this Complaint

pursuant to the Order confirming the Plan of Reorganization in the above-referenced Chapter 11

case entered on August 6, 2012.

1. Plaintiff Judy Ann Ferguson is an individual who at the relevant time was a

resident of Tularosa, Otero County, New Mexico.


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2. Plaintiff Otis Ferguson is an individual who at the relevant time was a resident of

Tularosa, Otero County, New Mexico.

3. Plaintiff Linda Hoefler is an individual who at the relevant time was a resident of

Alamogordo, Otero County, New Mexico.

4. Plaintiff Victor Wilkerson is an individual who at the relevant time was a resident

of Alamogordo, Otero County, New Mexico.

5. Plaintiff Joel Crossno is an individual who at the relevant time was a resident of

Capitan, Lincoln County, New Mexico.

6. Plaintiff Vivian Crossno is an individual who at the relevant time was a resident

of Capitan, Lincoln County, New Mexico.

7. Plaintiff Mickie Francis is an individual who at the relevant time was a resident of


8. Plaintiff Michael McCullough is an individual who at the relevant time was a

resident of Alto, Lincoln County, New Mexico.

9. Plaintiff Karen McCullough is an individual who at the relevant time was a

resident of Alto, Lincoln County, New Mexico.

10. Plaintiff Kelly Robbins is an individual who at the relevant time was a resident of

Ruidoso, Lincoln County, New Mexico.

11. Plaintiff Herbert Robbins is an individual who at the relevant time was a resident

of Ruidoso, Lincoln County, New Mexico.

12. Plaintiff Jerome Ward is an individual who at the relevant time was a resident of



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13. Plaintiff Rodney Bunsen is an individual who at the relevant time was a resident


14. Plaintiff Martha Bunsen is an individual who at the relevant time was a resident of

Ruidoso, Lincoln County, New Mexico.

15. Plaintiff Edna Morton is an individual who at the relevant time was a resident of

Las Cruces, Dona Ana County, New Mexico.

16. Plaintiff Royce Morton is an individual who at the relevant time was a resident of


17. Plaintiff Thomas Olive is an individual who at the relevant time was a resident of


18. Plaintiff Shirley Walls is an individual who at the relevant time was a resident of


19. Plaintiff Theresa Crawford is an individual who at the relevant time was a

resident of Las Cruces, Dona Ana County, New Mexico.

20. Plaintiff Clarence Crawford is an individual who at the relevant time was a

resident of Las Cruces, Dona Ana County, New Mexico.

21. Plaintiff Linda McKinney is an individual who at the relevant time was a resident


22. Plaintiff Arthur McKinney is an individual who at the relevant time was a resident


23. Plaintiff Barbara Olson is an individual who at the relevant time was a resident of



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24. Plaintiff Paul Strunk is an individual who at the relevant time was a resident of


25. Plaintiff Janice Bergeron is an individual who at the relevant time was a resident


26. Ms. Anne Murphree, The Otero County Hospital Association, Inc. Personal

Injury Trustee, is the successor-in-interest to Otero County Hospital Association, d/b/a Gerald

Champion Regional Medical Center (“GCR Hospital”) under the Confirmed Plan of

Reorganization. Ms. Murphree may be served with process at 4940 Corrales Road, Suite 200,

Corrales, New Mexico, 87048. GCR Hospital, a New Mexico private non-profit hospital and

corporation. Plaintiffs’ surgery, which is the subject of this lawsuit, occurred at GCR Hospital.

On August 16, 2011, GCR Hospital filed a voluntary petition for relief under Chapter 11 of the

United States Bankruptcy Code with the United States Bankruptcy Court for the District of New

Mexico. GCR Hospital confirmed its Plan of Reorganization on August 6, 2012. GCR Hospital

was directly involved in the events giving rise to Plaintiffs’ causes of action. Further, as detailed

herein, Defendants either were agents of GCR Hospital, dominated GCR Hospital, or were alter

egos of GCR Hospital.

27. Based upon information and belief, Defendant Christian R. Schlicht, D.O.

(“Schlicht”) was at all times material hereto, a licensed doctor of osteopathy practicing medicine

in the State of New Mexico and did practice medicine as an agent or employee of GCR Hospital

in Alamogordo, Otero County, New Mexico.

28. Based upon information and belief, Defendant Schlicht is not a qualified provider

as defined by the New Mexico Medical Malpractice Act, N.M.S.A. 1978, §§ 41-5-1 through 41-

5-29.


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29. Based upon information and belief, Frank Bryant, M.D. (“Bryant”) was at all

times material hereto a licensed doctor of allopathic medicine practicing medicine in the State of

New Mexico and did practice medicine as an agent or employee of GCR Hospital in

Alamogordo, Otero County, New Mexico

30. Based upon information and belief, Defendant Bryant is not a qualified provider

as defined by the New Mexico Medical Malpractice Act, N.M.S.A. 1978, §§ 41-5-1 through 41-

5-29.

31. Triad Healthcare Corporation and Triad Hospitals, Inc. (herein collectively

referred to as “Triad”) are, on information and belief, foreign corporations doing business in

Alamogordo, Otero County, New Mexico through their alter ego, Defendant Quorum Health

Resources LLC (“Quorum”).

32. Based on information and belief, Defendant Triad is not a qualified provider as

defined by the New Mexico Medical Malpractice Act, N.M.S.A. 1978, §§ 41-5-1 through

41-5-29.

33. Defendant Quorum was, on information and belief, at all material times a foreign

limited liability company conducting business in Alamogordo, Otero County, New Mexico.

34. Defendant CHS/Community Health Systems, Inc. (“CHS”) is a Tennessee

corporation doing business in Alamogordo, Otero County, New Mexico. CHS owned Defendant

Quorum after July 25, 2007, having purchased the outstanding shares of Defendant Triad and

therefore becoming the successor owner and alter ego of Defendant Quorum as of that date.

35. Based on information and belief, Defendant CHS is not a qualified provider as

defined by the New Mexico Medical Malpractice Act, N.M.S.A. 1978 §§ 41-5-1 through

41-5-29.


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36. Defendant Community Health Systems Professional Services Corporation

(hereinafter also referred to collectively as “CHS”) was a foreign corporation that owned

Defendant Quorum after July 25, 2007, having purchased the outstanding shares of Defendant

Triad and therefore becoming the successor owner and alter ego of Defendant Quorum as of that

date. Upon information and belief Defendant CHS conducted business in Alamogordo, Otero

County, New Mexico through its alter ego Defendant Quorum.

37. Defendant White Sands Health Care Systems, LLC (“White Sands”) is a New

Mexico corporation and contracted with GCR Hospital to hire, verify and credential hospital

employees including Defendant Schlicht, and handled billing for procedures performed by

Defendants Schlicht and Bryant.

38. Based upon information and belief, Defendant White Sands was not a qualified

provider as defined by the New Mexico Medical Malpractice Act, N.M.S.A. 1978, § 41-5-1

through § 41-5-29.

39. Defendants Quorum, Triad, GCR Hospital, CHS and White Sands are hereinafter

referred to collectively as “Defendant GCRMC.”

II. JURISDICTION AND VENUE

40. This is an adversary proceeding brought pursuant to Federal Rules of Bankruptcy

Procedure §§ 7001(1) and (8) for Medical Negligence, Negligent Hiring and Credentialing and

Resultant Damages. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b). Venue of

the adversary proceeding is proper in this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

III. FACTS

41. Joint Plaintiffs reallege all of the above paragraphs by reference.


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42. On or about January 29, 2007, Plaintiff Judy Ann Ferguson came under the care

of Defendant Schlicht. Defendants, individually and/or in concert, held Defendant Schlicht out

to Plaintiffs and the general public as a neurosurgeon.

43. On or about the same aforesaid date and occasion, Defendant Schlicht performed

a fluoroscopic injection of Plaintiff Judy Ann Ferguson’s left hip joint and advised Plaintiff Judy

Ann Ferguson she may require a left sacroiliac joint fusion.

44. On or about March 26, 2007, Plaintiff Judy Ann Ferguson underwent surgery

performed by Defendants Schlicht and Bryant at GCR Hospital. Defendants did not have the

correct equipment and it was necessary for Plaintiff Judy Ann Ferguson to undergo a subsequent

surgery performed by Bryant on March 29, 2007.

45. On or about the same aforesaid date and occasion Defendants, individually and/or

in concert, held Defendant Bryant out to Plaintiffs and the general public as a neurosurgeon.

46. On or about February 20, 2008, Plaintiff Judy Ann Ferguson underwent a catheter

injection under fluoroscopy at the Sl-S2 level. Said procedure was performed by Defendant

Schlicht, who advised Plaintiff Judy Ann Ferguson she had a disc at the S1-S2 segment which

required disc compression.

47. On or about March 12, 2008, Plaintiff Judy Ann Ferguson underwent a

nuceoplasty disc compression at Sl-S2 performed by Defendant Schlicht.

48. Following the March 12, 2008, procedure Plaintiff Judy Ann Ferguson

experienced excruciating and debilitating pain.

49. On or about May 1, 2010, Plaintiffs learned that neither Defendant Bryant nor

Defendant Schlicht were neurosurgeons, and that the representations by Defendant GCRMC

regarding Bryant’s and/or Defendant Schlicht’s credentials and qualifications were false.


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50. Plaintiffs relied upon the representations of one or more of the Defendants when

making decisions about her medical care.

51. Upon information and belief knowing that Defendant Schlicht was not qualified

to perform orthopedic surgery and/or neurosurgery, Defendant GCRMC allowed and/or enabled

Defendant Schlicht to perform such procedures at GCR hospital.


to perform orthopedic surgery and/or neurosurgery, Defendant Bryant participated in such

procedures and enabled Defendant Schlicht to perform inappropriate medical procedures on

patients such as Plaintiff Judy Ann Ferguson at GCR Hospital.

53. Upon information and belief knowing that Defendant Bryant was not qualified to

perform neurosurgery, Defendant GCRMC allowed and/or enabled Defendant Bryant to perform

such procedures at GCR hospital.

54. As a direct and proximate result of each individual Defendant’s negligence and

negligent misrepresentations, Plaintiff Judy Ann Ferguson is permanently disabled, is in constant

excruciating pain, and is unable to engage in daily activities which she enjoyed prior to coming

under Defendants’ care.

55. As a direct and proximate result of each individual Defendant’s negligence,

Plaintiff Judy Ann Ferguson has and will continue to suffer damages, including but not limited to

damages for medical and related expenses, pain and suffering, emotional distress, lost wages,

loss of recreational activity, loss of household services and loss of enjoyment of life.


Plaintiff Otis Ferguson has and will continue to suffer damages for loss of spousal consortium.


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57. On or about April 23, 2007, Plaintiff Linda Hoefler came under the care of

Defendant Bryant for a scheduled L5-S1 spinal fusion to treat spondylolisthesis (the

displacement of vertebrae or vertebral column in relation to the vertebrae below).

58. Upon information and belief, said spinal fusion was performed at GCR Hospital.

59. Upon information and belief, Defendant Bryant used a form of cement to fuse the

vertebrae in Plaintiff Linda Hoefler’s back.

60. Immediately following this surgery, Plaintiff Linda Hoefler began experiencing

severe and excruciating pain in her back.

61. Plaintiff Linda Hoefler was told by Defendant Bryant that the pain was to be

expected and that it would take time for her back to completely heal.

62. Because Plaintiff Linda Hoefler’s pain was not subsiding, on or about September

of 2007, Plaintiff was seen by Defendant Bryant again. Defendant Bryant informed Plaintiff that

he should have fused both sides of Plaintiffs back, rather than just one side and that the problem

would be corrected if she would permit him to perform a second spinal fusion.

63. In late April of 2008, Defendant Bryant performed a second spinal fusion on

Plaintiff Linda Hoefler apparently using the same cement-like material to fuse Plaintiff’s LS-S1.

64. Upon information and belief, said spinal fusion was performed at GCR Hospital.

65. Immediately following the second surgery, Plaintiff Linda Hoefler’s pain

increased.

66. Upon information and belief, Bryant then referred Plaintiff Linda Hoefler to

Defendant Bryant’s colleague, Defendant Christian Schlicht, D.O. for epidural steroid injections.

67. Plaintiff Linda Hoefler was subsequently referred to David Masel, M.D. in El

Paso, Texas.


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68. Dr. Masel advised Plaintiff Linda Hoefler that she would need to have the surgical

cement removed from her vertebrae immediately.

69. Plaintiff Linda Hoefler was then referred to Brett Henderson, M.D. to undergo a

surgical procedure to remove the cement from Plaintiff Linda Hoefler’s vertebrae.

70. Following the surgery, Plaintiff Linda Hoefler was informed by Dr. Henderson

that all of the surgical cement could not be removed.


Plaintiff Linda Hoefler is presently disabled, is in constant pain, and is unable to engage in daily

activities which she enjoyed prior to coming under Defendant Bryant’s care.


Plaintiff Linda Hoefler and Plaintiff Victor Wilkerson suffer and continue to suffer damages for

the value of the loss of consortium of Plaintiff Linda Hoefler.

73. On or about November 19, 2009 Joel Crossno underwent a revision arthroplasty

and complete synovectomy of the right knee performed by Defendant Bryant.


perform neurosurgery, Defendant GCRMC allowed and/or enabled Defendant Bryant to perform

such procedures at GCR hospital.

75. Following the surgery Joel Crossno experienced significant pain and limitations,

and it was subsequently determined that the surgery had been performed incorrectly.

76. Joel Crossno experienced a failure of the total knee surgery performed by

Defendant Bryant.

77. As a direct and proximate result of each individual Defendant’s negligence Joel

Crossno has and will continue to incur medical and related expenses, as well as pain and


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suffering, emotional distress, loss of recreation, loss of household services, loss of enjoyment of

life.


Plaintiff Joel Crossno and Plaintiff Vivian Crossno suffer and continue to suffer damages for the

value of the loss of consortium of Plaintiff Joel Crossno.

79. On or about March 19, 2010, Defendant Bryant performed an augmentation

placing a cement-like material in Plaintiff Mickie Francis’s lumbar spine at the L2 level.


perform neurosurgery, Defendant GCRMC allowed and/or enabled Bryant to perform such

procedures at GCR hospital.

81. Defendant GCRMC knew or should have known Defendant Bryant was

performing improper procedures at GCR Hospital, and allowed him to practice and negligently

perform surgeries.

82. Since the surgery, Mickie Francis has experienced significant pain and

limitations.


Mickie Francis has and will continue to incur medical and related expenses, as well as pain and

suffering, emotional distress, loss of recreation, loss of household services, and loss of

enjoyment of life.

84. Plaintiff Michael McCullough consulted Defendant Schlicht in 2008 for chronic

back and right leg pain. Defendant Schlicht ordered an MRI of Plaintiff Michael McCullough’s

lumbar spine which was performed on June 17, 2008, at the Lincoln County Medical Center.

Defendant Schlicht diagnosed Plaintiff Michael McCullough with degenerative disc disease at


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the L5-S1 level and recommended surgery. Defendant Schlicht offered Plaintiff Michael

McCullough a procedure that Schlicht said would correct this problem and relieve his pain.

85. On July 17, 2008, Plaintiff Michael McCullough, at GCR Hospital, underwent the

surgery which Defendant Schlicht had recommended. In this surgery, Defendant Schlicht

performed “percutaneous disc arthroplasty” at the L5-S1 level of Plaintiff’s spine.

86. In this surgical procedure, discectomy was performed percutaneously at the L5,

S1 disc space, and then polymethylmethacrylate was injected into the nuclear disc space.

87. “Percutaneous disc arthroplasty” is a term used by Defendant Bryant and

Defendant Schlicht for the process whereby the surgeon removes the disc that resides between

the patient’s vertebral bodies, and then injects a polymer called polymethylmethacrylate

(PMMA) into the space where the disc resided. PMMA is often referred to as cement, and it is

also known as Plexiglas.

88. Percutaneous disc arthroplasty with insertion of PMMA is an experimental

procedure. This experimental procedure was done at the L5, S1 disc space on Plaintiff Michael

McCullough.

89. Percutaneous disc arthroplasty with insertion of PMMA is unsafe, untested,

unapproved by the FDA or any other regulatory body, and not reimbursable by any insurance

carriers.

90. Plaintiff Michael McCullough did not know, and was never told by any individual

Defendant, or anyone at GCR Hospital, that PMMA is not safe or effective for his spinal surgery

and not approved or recognized in the field of medicine for such surgery.

91. Defendant Schlicht acted as the primary surgeon in this surgery.


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92. Defendant Bryant assisted in the surgery. Plaintiff Michael McCullough had

never been informed of, and never consented to, Defendant Bryant’s participation in the surgery.

93. Furthermore, Defendant Schlicht is actually an anesthesiologist by training. He is

not and never has been trained as a surgeon of any kind.

94. Plaintiff Michael McCullough did not know, and was never informed by any of

the Defendants or anyone at GCR Hospital, that Defendant Schlicht was not a surgeon.

95. Defendant Schlicht and Defendant Bryant negligently performed the surgery on

July 17, 2008.







patients such as Plaintiff Michael McCullough at GCR Hospital.


Plaintiff Michael McCullough has been permanently injured. Plaintiff Michael McCullough now

suffers severe low back and leg pain with disability. He now experiences chronic daily pain and

must rely on narcotic pain medications to enable him to function in order to perform his activities

of daily living. Plaintiff Michael McCullough’s sleep is very poor due to this chronic pain and he

has difficulty with ambulation.

99. Additionally, Plaintiff Michael McCullough cannot pick up his right leg to walk

and has to shuffle step. When he tries to walk normally he hears crunching in his back. He sits


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on a heating pad or will roll up wash cloths to sit at an angle for some relief of pain, as the pain is

constant. He cannot mow the lawn, ride his quad, go on hikes, stand up straight, or travel for

long periods of time.


Plaintiff Karen McCullough suffers and continues to suffer damages for the value of the loss of

consortium of Plaintiff Michael McCullough.

101. In 2007, Plaintiff Kelly Robbins was experiencing pain in the lower lumbar

region of her spine. She consulted with Defendant Schlicht at GCR Hospital about this.

102. On December 19, 2007, Plaintiff Kelly Robbins underwent spinal surgery at GCR

Hospital. The Operative Report for this surgery was dictated by Defendant Schlicht, and

electronically signed by Defendant Bryant.

103. Plaintiff Kelly Robbins had never seen or met Defendant Bryant prior to the date

of the surgery.

104. Plaintiff Kelly Robbins alleges upon information and belief that Defendant

Schlicht acted as primary surgeon in this surgery, and Defendant Bryant acted as assistant

surgeon.

105. In a report generated just prior to this surgery, Defendant Bryant states: “We

explained to her the use of polymethylmethacrylate in the disc space at L3-4 and L5-81....”

However, Plaintiff Kelly Robbins knew nothing of the actual truth about the safety or efficacy of

this procedure, because Defendants did not provide her with that actual information.

106. The surgical procedure that was performed by Defendant Bryant and Defendant

Schlicht on December 19, 2007, was reportedly a bilateral facet fusion at L3-L4, L5-S1, bilateral

discectomy at L3-L4 and L5-S1, with “disc arthroplasty” at L3- L4 and L5-S1. Facet fusions


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were reportedly performed at both lumbar levels, with bone dowel placement. Following that,

discectomy was reportedly performed bilaterally, at the same lumbar levels, with the evacuation

of disc nucleus material from each. After that was completed, the disc spaces at L3-L4 and L5-

S1 were injected with polymethylmethacrylate into the cavity of the nucleus.

107. Plaintiff Kelly Robbins did not know, and was never informed by any of the

Defendants or anyone at GCR Hospital, that Defendant Schlicht was not a surgeon.







patients such as Plaintiff Kelly Robbins at GCR Hospital.


Plaintiff Kelly Robbins has been permanently injured. Plaintiff Kelly Robbins has had

increasingly severe low back pain and physical deficits, Plaintiff Kelly Robbins must rely on the

use of narcotic pain medications in order to be able to perform any activities of daily living, as a

result of the severity of her low back pain.

111. Plaintiff Kelly Robbins has daily back pain, no flexibility in her back, experiences

pain that radiates down both of her legs, numbness in her right leg, hyperactive reflexes,

problems walking, trouble sleeping and can only sleep about four hours at a time; suffers

incontinence in both her bladder and bowl; cannot travel for long distances; has had to hire a


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housekeeper because she can no longer perform housework; cannot pick up her grandchildren

and is no longer able to do water aerobics, which she used to do on a regular basis.


Plaintiff Herbert Robbins suffers and continues to suffer damages for the value of the loss of

consortium of Plaintiff Kelly Robbins.

113. Plaintiff Jerome Ward underwent his surgery that forms the basis of this lawsuit

by Defendants Schlicht and Bryant on August 5, 2008.

114. On May 2, 2008, Plaintiff Jerome Ward consulted Defendant Bryant at Southwest

Spine, regarding an evaluation for a complaint of chronic low back pain.

115. On May 2, 2008, Defendant Bryant performed a transforaminal epidural steroid

injection at L4-5 for symptomatic relief, and in June, 2008, Defendant Bryant injected Plaintiff

Jerome Ward’s lumbar facets bilaterally at L4-5 and L5-S1.

116. Plaintiff Jerome Ward did not experience any significant improvement as a result

of these procedures. Plaintiff Jerome Ward’s subjective complaint of pain at this time was a

level 6 out of 10, out of a possible range of 10 out of 10, with 10 being the worst possible pain.

117. On August 4, 2008, Defendant Bryant dictated a pre-operative History and

Physical regarding Plaintiff Jerome Ward and in this record, Defendant Bryant noted that he

advised Plaintiff Jerome Ward that he had two “distinct problems that can give rise to back pain,

i.e., degenerative disc and osteoarthritis of the hip.

118. Plaintiff Jerome Ward believed his back was worse and opted for a less invasive

procedure as opposed to disc replacement or formal arthrodesis. Defendant Bryant offered him

endoscopic discectomy and then disc height restoration with interpositional arthroplasty using

polymethylmethacrylate.


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119. On August 5, 2008 Plaintiff Jerome Ward underwent surgery at Defendant GCR

Hospital with Defendant Bryant and Defendant Schlicht for degenerative disc disease at L3-4,

L4-5, and L5-S1.

120. The operative report indicates that Defendant Bryant performed percutaneous disc

arthroplasty at L3-4, L4-5 and L5-S1, bilateral discectomy at L3-4, L4-5 and L5-S1, and

transforaminal epidural injections at right L3 and left L4.

121. It was during the August 5, 2008, procedure that Defendants Bryant and Schlicht

negligently performed an experimental procedure on the Plaintiff, Jerome Ward, by injecting

PMMA into the spaces where the disc material had been removed at the aforementioned levels.

The operative report notes that “...the cement was maintained within the joint space.”

122. Following surgery, Plaintiff Jerome Ward continued to have unrelenting and

worsening low back pain. Plaintiff Jerome Ward’s severe pain was marginally controlled by the

use of prescribed narcotic pain medication. Plaintiff Jerome Ward’s pain averaged a level of 9

out of 10 following his procedure with Defendants.

123. By August, 2009, in addition to severe low back pain, Plaintiff Jerome Ward was

also experiencing radicular pain into his left buttock, posterior thigh, calf and foot, with marked

left foot and ankle weakness, and episodes of stool incontinence.

124. Plaintiff Jerome Ward was re-admitted by Defendant Bryant to GCR Hospital on

August 10, 2009. Plaintiff Jerome Ward was advised by Defendant Bryant, following imaging

of his low back, that the “cement” (PMMA) had extruded and that it would have to be removed.

Furthermore, Plaintiff Jerome Ward was advised by Defendant Bryant that he would have to

have the three lumbar levels fused with screws and spacers at the area where he and Defendant

Schlicht had placed the PMMA.


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125. On August 11, 2009, Plaintiff Jerome Ward was taken back to the operating room

at GCR Hospital by Defendant Bryant for removal of the “previous disc arthroplasty material”

(PMMA) at all three aforementioned levels in his low back. By this time, a herniation had

occurred at the L5-5 level causing an impingement on the L5 nerve root and a tear had developed

at the posterior annulus of the disc at L3-4, in addition to a herniation with indentation of the

thecalsac encroaching the neural foramina at L5-S1. The complicated surgical procedure that

ensued was an attempt by Defendant Bryant to repair the damage caused by the negligent

placement of PMMA. This procedure included a lateral interbody fusion at L3-4 and L4-5 with

application of anterior spinal instrumentation at three segments, application of anterior vertebral

body spacer devices for spinal fusion at three levels, anterior interbody fusion at L5-S1, complete

discectomy and decompression at the three levels, and placement of spacers and hardware.

Plaintiff Jerome Ward was discharged home on August 16, 2009.

126. Following discharge, Plaintiff Jerome Ward was readmitted on August 28, 2009,

to GCR Hospital by Defendant Bryant, for intractable low back pain and severe abdominal pain.

Imaging suggested a cystic mass that could represent an abscess near the location of the August

2009 surgical site. Plaintiff Jerome Ward was treated with intravenous antibiotics.

127. Plaintiff Jerome Ward was discharged home on September 2, 2009 with orders for

continued intravenous antibiotic therapy.

128. On September 6, 2009, Plaintiff Jerome Ward was readmitted to GCR Hospital

for increasing severe abdominal pain and functional limitations. A cystic mass was once again

identified on imaging suggestive of abscess formation at the previous surgical site. Laboratory

analysis was suggestive for an infectious process and inflammation. Following incision and

percutaneous drainage of the abscess formation, fluid collected from the drainage grew out


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MRSA (Methicillin Resistant Staphylococcus) and an aggressive course of antibiotic therapy

commenced. Ultimately, secondary to Plaintiff Jerome Ward’s worsening condition, Defendant

Bryant participated in performing an exploratory laparotomy on September 12, 2009, with

removal of the anterior spinal instrumentation and further drainage of the abscesses.

129. Following that procedure, Plaintiff Jerome Ward was subjected to an extensive,

prolonged course of antibiotic therapy that continued after Plaintiff Jerome Ward returned home.

130. Plaintiff Jerome Ward continued to follow-up with Defendant Bryant in 2009 and

2010 for continued complaints of low back pain and the associated aforementioned symptoms.

Unrelenting severe pain in Plaintiff Jerome Ward’s bilateral lumbar region, bilateral buttocks,

bilateral posterior thigh and calf regions and bilateral feet to the toes continued.

131. Plaintiff Jerome Ward consulted Charles F. Pace, M.D. on October 6, 2010,

regarding pain management and Dr. Pace’s impression was that Plaintiff Jerome Ward was

suffering from chronic pain syndrome and post laminectomy syndrome. Plaintiff Jerome Ward

was determined to be a candidate for a spinal cord stimulator trial by Dr. Pace in November

2010 and in January 2011, following the trial, Plaintiff Jerome Ward had implantation of a

permanent spinal cord stimulator system by Dr. Pace. Unfortunately, the permanent spinal cord

stimulator has only provided Plaintiff Jerome Ward with limited relief of his low back pain.


perform orthopedic surgery and/or neurosurgery, Defendant GCRMC allowed and/or enabled

Defendant Bryant to perform such procedures at GCR hospital.


perform orthopedic surgery and/or neurosurgery, Defendant Schlicht participated in such


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procedures and enabled Defendant Bryant to perform inappropriate medical procedures on

patients such as Plaintiff Jerome Ward at GCR Hospital.


Plaintiff Jerome Ward has a difficult time ambulating due to his chronic back pain and severe

pain in his legs. Plaintiff Jerome Ward cannot stand or walk for more than fifteen or twenty

minutes and is home-bound and/or bedridden much of the time. Plaintiff Jerome Ward has

difficulty performing everyday tasks such as driving or shopping. Plaintiff Jerome Ward can no

longer perform his usual tasks at home, such as yard work. Activities of daily living, such as

dressing himself and food preparation, cause extreme difficulties on a daily basis secondary to

his low back pain.

135. As a direct result of the multiple chronic medical issues related to the negligent

acts of Defendants, Plaintiff Jerome Ward is prescribed narcotic medication for pain and anti-

depressant medication to help alleviate the suffering he experiences on a daily basis. As a result,

Plaintiff Jerome Ward has suffered other related medical issues, such as episodes of bowel

incontinence, chronic constipation, retrograde ejaculation, anxiety, depression, loss of appetite

with associated weight loss, and insomnia. Additionally, Plaintiff Jerome Ward’s pain level

averages 9 out of 10 on a daily basis.

136. Further, Plaintiff Jerome Ward continues to experience chronic severe low back

pain and associated lower extremity disability secondary to the damage that resulted from the

negligent placement of PMMA in the three spinal levels by Defendant Bryant and Defendant

Schlicht in August 2008. The aftermath of this negligence, including the surgeries that were

necessitated to address the complications which arose from the August 2008 procedure, the

infectious process that developed and required a prolonged and difficult period of treatment, and


LA2243553.1218545-10001

22

the harm that was inflicted on Plaintiff Jerome Ward by the negligent placement of PMMA, has

left Plaintiff Jerome Ward in a profoundly debilitated state which is permanent.

137. Additionally, as a result of all of his injuries made the basis of this claim, Plaintiff

Jerome Ward in not employable and became eligible for disability. Up to the time of the

procedure made the basis of this claim, Plaintiff Jerome Ward was gainfully employed full-time.

138. On June 20, 2007, Plaintiff Rodney Bunsen had a medical consultation with

Defendant Schlicht concerning problems and pain Plaintiff Rodney Bunsen was having in his

lower back. The consultation took place at Schlicht’s office in the GCR Hospital complex.

139. In that consultation, Defendant Schlicht told Plaintiff Rodney Bunsen that he

(Schlicht) had a surgical procedure which he was confident would alleviate Plaintiff Rodney

Bunsen’s back pain. Defendant Schlicht described the procedure in medical terms which

Plaintiff Rodney Bunsen did not fully understand.

140. Plaintiff Rodney Bunsen did not know, and no Defendant ever told him, that

Defendant Schlicht was merely an anesthesiologist who had no training as a back surgeon, and

indeed no training as a surgeon of any kind.

141. In early 2009, Plaintiff Rodney Bunsen underwent the procedure which

Defendant Schlicht had recommended to him at the June 20, 2007 consultation. However, on

December 1, 2008, Defendant Schlicht had departed from his employment with GCR Hospital.

Therefore, Plaintiff Rodney Bunsen in 2009 consulted with Defendant Bryant at Defendant

Bryant’s office in the GCR Hospital complex.

142. Defendant Bryant, in a medical report dated February 3, 2009, states that prior to

the surgery on Plaintiff Rodney Bunsen which took place on the same date, Defendant Bryant


LA2243553.1218545-10001

23

offered Plaintiff Rodney Bunsen the insertion of polymethylmethacrylate (PMMA) in the

anterior disc space of Plaintiff Rodney Bunsen’s spine, in order to provide “instant stability.”

143. On February 3, 2009, at GCR Hospital, Defendant Bryant performed a two-level

“lumbar interbody fusion” on Plaintiff Rodney Bunsen; at L4-L5 and-L5-S1.

144. During the course of the lumbar interbody fusion at L4-L5, Plaintiff Rodney

Bunsen experienced an intra-operative surgical hemorrhage and required two units of packed red

blood cells to replace volume loss. After a short hospital stay, Plaintiff Rodney Bunsen was

discharged home.

145. Within several months, Plaintiff Rodney Bunsen experienced a sudden onset of

severe, intractable low back and left leg pain and consulted Defendant Bryant. Defendant Bryant

ordered imaging and documented that an MRI “showed a marked reactive endplate edema of end

plates of L4 and L5 with resortion of the bone cement.” Furthermore, Defendant Bryant

documented: “These show reactive end plate changes of L4 and L5 that are new.”

146. Defendant Bryant determined that Plaintiff Rodney Bunsen must be brought back

to surgery for revision of “the attempt at fusion of L4-5 with a lateral interbody arthrodesis.”

Defendant Bryant’s plan was to revise and stabilize the area with a revision lateral fusion.

Defendant Bryant pre-operatively diagnosed Plaintiff Rodney Bunsen with post-laminectomy

syndrome status post implantation of interspinal spacer devise, L4-L5 with intractable back pain.

147. On June 1, 2009, Defendant Bryant reportedly performed the following

procedures on Plaintiff Rodney Bunsen: a) removal of previously implanted posterior segmental

spinal instrumentation through separate incision; b) anterior retroperitoneal approach for spinal

fusion; c) anterior lumbar interbody spinal arthrodesis at L4- L5; d) application of intravertebral

body spacer devise for spinal fusion, 1 level, L4-L5; e) application of posterior spinal


LA2243553.1218545-10001

24

instrumentation, L4-L5, through separate incision; f) posterior spinal fusion, L4-L5,

posterolateral technique; g) application of skeletal traction pin, right ileum through separate

incision.

148. “Lumbar interbody fusion”—performed by Defendant Bryant on Plaintiff Rodney

Bunsen on February 3, 2009—is a term used by Defendants Bryant and Schlicht for the process

whereby the surgeon removes the disc that resides between the patient’s vertebral bodies, and

then injects PMMA into the space where the disc resided. PMMA is often referred to as cement,

and it is also known as Plexiglas.

149. Plaintiff Rodney Bunsen did not know, and was never told by any Defendant that

PMMA was not safe or effective for Plaintiff Rodney Bunsen’s spinal surgery and not

recognized in the field of medicine as proper for such surgery.


perform orthopedic surgery and/or neurosurgery, Defendant GCRMC allowed and/or enabled

Defendant Bryant to perform such procedures at GCR hospital.

151. As a direct and proximate result of each individual Defendant’s negligence, the

insertion of PMMA into his spine, Plaintiff Rodney Bunsen has been permanently injured.

Specifically, Plaintiff Rodney Bunsen has experienced a dramatic worsening of his overall

condition. He must now ambulate with a walker and has difficulty sleeping secondary to his

chronic back and extremity pain. Furthermore, Plaintiff Rodney Bunsen cannot tolerate physical

activities for any prolonged period of time and suffers from extremity weakness and edema.

Plaintiff Rodney Bunsen cannot perform the activities that he formerly pursued, such as activities

of daily living - for example putting on his own shoes and socks.


LA2243553.1218545-10001

25

152. Additionally, as a direct result of this incident Plaintiff Rodney Bunsen cannot do

the following: yard work; operate any kind of machinery; hike in the mountains; fain; ride his

quad; travel for long distances since he has to stop at rest stops frequently to get out and walk

around; climb a ladder and clean the gutters; or break horses. Further, he has had to sell his

horses because he can no longer get out and attend to them. He can no longer bend down or

bathe himself. His wife must bathe him as he sits on a chair in the bathtub. He can no longer lift

his feet.

153. Plaintiff Rodney Bunsen did not know, and was never informed by any

Defendant, that the lumbar interbody fusion was the cause of Plaintiff Rodney Bunsen’s

permanent injury and disability.

154. As a direct and proximate result of each individual Defendants’ negligence,

Plaintiff Martha Bunsen suffers and continues to suffer damages for the value of the loss of

consortium of Plaintiff Rodney Bunsen.

155. In 2008, Plaintiff Edna Morton was experiencing pain and problems with her

back. She sought help for this condition by consulting with Defendant Schlicht.

156. Defendant Schlicht, in the Spring of 2008 at Defendant Schlicht’s office at GCR

Hospital, told Plaintiff Edna Morton that he had a surgical procedure which could help her. He

explained that this procedure involved injecting a cement-like substance into her spine.

157. On April 11, 2008, Defendant Schlicht performed “percutaneous disc

arthroplasty” at L3-L4 and L4-L5 upon Plaintiff Edna Morton at GCR Hospital. This surgical

procedure included bilateral discectomy followed by left IA L5 transforaminal epidural steroid

injections. After evacuation and removal of the disc material, Defendant Schlicht injected

PMMA into the disc spaces.


LA2243553.1218545-10001

26

158. Defendant Bryant participated in performing this surgery on Plaintiff Edna

Morton, as co-surgeon.

159. Percutaneous disc arthroplasty with insertion of PMMA is an experimental

procedure. This experimental procedure was done at L3-L4 and L4-L5 on Plaintiff Edna

Morton.

160. Percutaneous disc arthroplasty with insertion of PMMA is unsafe, untested,


carriers.

161. Plaintiff Edna Morton did not know, and was never told by any Defendant that

PMMA was not safe or effective for her spinal surgery and not approved or recognized in the

field of medicine for such surgery.

162. Plaintiff Edna Morton further did not know, and was never informed by any

Defendant that Defendant Schlicht was merely an anesthesiologist who had no training

whatsoever as a surgeon.





perform orthopedic surgery and/or neurosurgery, Defendant Bryant participated in such


patients such as Plaintiff Edna Morton at GCR Hospital.


Plaintiff Edna Morton has been permanently injured. Plaintiff Edna Morton can now barely


LA2243553.1218545-10001

27

walk, and is in constant and severe pain. Life for her has become unbearable because of the

pain. She has undergone additional surgical procedures in an attempt to remove the PMMA and

repair the damage that was caused by the negligent placement of polymethylmethacrylate in her

lumbar spine, but these additional procedures have not brought her relief.

166. Plaintiff Edna Morton did not know, and was never informed by any Defendant,

that the percutaneous disc arthroplasty surgery was a cause of her permanent injury.


Plaintiff Royce Morton suffers and continues to suffer damages for the value of the loss of

consortium of Plaintiff Edna Morton.

168. Plaintiff Thomas Olive underwent his surgery that forms the basis of this lawsuit

by Defendants Schlicht and Bryant on August 19, 2008.

169. Plaintiff Thomas Olive was referred to Defendant Schlicht by his primary care

physician at Holloman Air Force Base 49th Medical Group, Gregory Climaco, M.D., in May

2008 for complaints of low back pain and left-sided sciatica with associated left leg pain, of

approximately two years’ duration. At the time of his initial evaluation with Defendant Schlicht,

Plaintiff Thomas Olive’s low back pain was a 4 or a 5, out of a possible 10, with 10 being the

worst possible pain.

170. The MRI that Defendant Schlicht relied upon to evaluate Plaintiff Thomas Olive’s

condition was performed on October 25, 2006.

171. Subsequent to Plaintiff Thomas Olive’s initial examination by Defendant

Schlicht, Plaintiff Thomas Olive was provided with an epidural injection at the L4-L5 level by

Defendant Schlicht on June 13, 2008, and on July 25, 2008, at GCR Hospital. Plaintiff Thomas

Olive did not obtain any lasting pain relief from these procedures.


LA2243553.1218545-10001

28

172. On August 19, 2008, Plaintiff Thomas Olive underwent surgery at GCR Hospital

for severe central canal stenosis at L3-L4 and L4-L5, and degenerative disc disease at L3-L4.

The operative report and associated medical records identify Defendant Bryant as Plaintiff

Thomas Olive’s surgeon, and Defendant Schlicht as the assistant surgeon. Prior to surgery, on

August 18, 2008, a brief History and Physical (H & P) was dictated by Defendant Schlicht. In

this H & P, Defendant Schlicht notes, under “History of Present Illness”, that Plaintiff Thomas

Olive is a “61-year old patient with spinal stenosis in need of an epidural injection”. However,

the procedure that followed was not an epidural injection.

173. The procedure that was performed by Defendants Bryant and Schlicht on August

19, 2008, was a complete laminectomy of L3 and L4 and removal of disc material, between L3-

L4, with arthroplasty at L3-L4, followed by a discectomy at L4-L5 on the left side with removal

of the L4-L5 disc nucleus. Following laminectomy with lumbar decompression at L3-L4 and at

L4-L5, discectomy at L4-L5, bilateral endoscopic discectomy at L3-L4, and interpositional disc

arthroplasty at L3-L4, PMMA was injected into the disc space between L3-L4, “aiming for

complete fill.”

174. Defendant Bryant dictated the operative report and he is documented as being the

surgeon, with Defendant Schlicht as the assistant surgeon. Plaintiff Thomas Olive was unaware

that Defendant Bryant was going to be the primary surgeon in his case and, in fact, was not

introduced to Defendant Bryant until a post-operative follow-up office visit.

175. The day after surgery, on August 20, 2008, Plaintiff Thomas Olive was

discharged home. Defendant Schlicht dictated the Discharge Summary. Immediately post-op,

Plaintiff Thomas Olive initially felt improvement with his left leg complaints.


LA2243553.1218545-10001

29

176. In the days and weeks following surgery, Plaintiff Thomas Olive’s severe low

back pain recurred, and he experienced the onset of bilateral lower extremity radiculopathy, most

notably with a new onset of pain radiating down the right leg and left-sided foot drop, in addition

to bilateral lower extremity weakness, numbness and pain. Plaintiff Thomas Olive followed up

with Defendant Schlicht, and during one of those follow-up office visits, Plaintiff Thomas Olive

was introduced to Defendant Bryant.

177. In September 2008, an MRI was ordered by Defendant Schlicht for a clinical

diagnosis of radiculopathy with back pain and left leg pain. The report of this MRI is notable for

the observation of right-sided foraminal narrowing at L4-L5 and a soft tissue defect causing mass

effect posterolaterally to the left at L4-L5 which was thought to be due to a combination of

extruded disc fragment with inflammation, scarring or both. Additionally, endplate changes

were noted at the L3-L4 and L4-L5 discs. Defendant Schlicht performed a right L3-L4

transforaminal epidural steroid injection on September 3, 2008, for Plaintiff Thomas Olive

continued to have complaints of right lumbar radiculopathy and severe low back pain.

178. Following referral by his primary care physician, Plaintiff Thomas Olive was

evaluated by Brett Henderson, M.D. on October 16, 2008, regarding bilateral leg pain, right now

worse than left, with a partial left-sided foot drop. An MRI of the lumbar spine demonstrated a

disc herniation at L4-L5, biased to the left and probable lateral recess stenosis on the right, with a

“large inferiorly extruded disc fragment is noted behind the L3 vertebrae adjacent to the right L3

pedicle.”

179. Dr. Henderson’s impression was lumbar radiculopathy. Dr. Henderson

recommended a decompression at the L4-L5 segment, focusing bilaterally, secondary to Plaintiff


LA2243553.1218545-10001

30

Thomas Olive’s complaints of pain that appeared to be either from the L4 distribution, versus a

partial L5 distribution, as well as the obvious motor deficit in the left L5 enervated groups.

180. On February 10, 2009, Plaintiff Thomas Olive sought treatment with David

Masel, M.D., in El Paso, Texas, due to the aforementioned persistent problems following the

surgery of August 19, 2008. Specifically, Plaintiff Thomas Olive had severe low back pain,

bilateral leg pain, right leg weakness, numbness and pain and left leg weakness with left foot

drop. Imaging obtained by myelogram CT in February 2010 exhibited extensive laminectomy

changes, L4-L5 vacuum disc phenomenon, laminectomy at L3-L4, impingement of the left L5

nerve root, and decreased filling of bilateral nerve roots. Dr. Masel determined that Plaintiff

Thomas Olive required discectomy, laminectomy and fasciectomy bilaterally at L4-L5. Dr.

Masel also informed Plaintiff Thomas Olive that he may eventually require fusion at that

segment, “or even the L3-L4 level, but not now.”

181. On March 25, 2009, Dr. Masel performed a “re-do” L4-L5 laminectomy,

facetectomy, and discectomy at Las Palmas Medical Center in El Paso, Texas. Plaintiff Thomas

Olive obtained little relief from his back pain following this procedure. Ultimately, Dr. Masel

diagnosed a postlaminectomy syndrome with residual radiculopathy and continued numbness in

the right leg. Post-operatively, Plaintiff Thomas Olive was prescribed a Medrol dose pack two

times during May and June of 2009, due to unrelenting pain, which became exacerbated and

worsened with severe pain to the right leg and right thigh.

182. Secondary to Plaintiff Thomas Olive’s continued complaints, another MRI of the

lumbar spine was performed on June 26, 2009. This study noted severe degenerative disc

disease at L3-L4 and L4-L5 with extensive perithecal scarring extending from the L3-L4 levels

through L4-L5, and with extensive scarring surrounding the nerve roots and thecal sac bilaterally


LA2243553.1218545-10001

31

at L4-L5, with resulting severe foraminal narrowing at L4-L5 on the right and moderate facet

arthritis at L5-S1. Additionally, the report of this MRI mentions: “There is a narrowing of the

signal void in L3-L4 and to a lesser extent L4-L5 which may be due to cement injection.”

183. As a result of Plaintiff Thomas Olive’s continued symptoms, and the information

obtained from the June 2009 MRI, Dr. Masel again admitted Plaintiff Thomas Olive for surgery

on August 17, 2009, at Sierra Medical Center in El Paso, Texas. During this admission, Dr.

Masel performed a second “re-do” L4-L5 laminectomy, facetectomy and transforaminal lumbar

interbody arthrodesis with interbody cage, and bone graft with a postlateral fusion utilizing

pedicle screw instrumentation.

184. Due to recurrent right lower extremity radiculopathy and severe low back pain, a

lumbar MRI was conducted on February 18, 2011, which exhibited the following: at L3, a large

mass medial to the right pedicle “most likely a free fragment disc hemiation...and extending

caudally”...at L3-L4: “severe bilateral foraminal stenosis, worsened”...and at L4-L5: “...solid

anterior fusion. The right foraminal stenosis that was present previously at this level has been

decompressed.”

185. In summary, the MRI report concluded that there was a large mass medial to the

right pedicle, most likely a disc fragment disc herniation extending from L2-L3, and probably

extending caudal and that there is severe foraminal stenosis worsening. On the same date in

February 2011, Plaintiff Thomas Olive had a post-myelogram CT which demonstrated extensive

laminectomy changes with grade 1 spondylolisthesis at L4-L5 and a vacuum disc phenomena

laminectomy at L3-L4 with impingement of the left L5 nerve root, and decreased filling at

bilateral L4 nerve roots.


LA2243553.1218545-10001

32

186. Plaintiff Thomas Olive followed up with Dr. Henderson in February 2011 and at

that time he was noted to have decreased range of motion in his back. Dr. Henderson references

the February 2011 MRI, and notes that the imaging demonstrated a “large inferiorly extruded

disc fragment ...behind the L3 vertebrae adjacent to the right L3 pedicle.” Dr. Henderson’s

assessment is disc herniation, displacement of lumbar intervertebral disc, lumbosacral

radiculopathy and lumbar spinal stenosis. Dr. Henderson recommended surgery at the L2-L3

level.







patients such as Plaintiff Thomas Olive at GCR Hospital.


Plaintiff Thomas Olive has chronic severe low back pain, weakness in his bilateral lower

extremities and residual left foot drop with weakness and numbness. It is difficult for Plaintiff

Thomas Olive to sit for any prolonged period of time, he has difficulty lying on his left side, and

problems ambulating. Plaintiff Thomas Olive must take narcotic pain medications when his low

back pain becomes unbearable, and at those times, his pain can be at a level of 8 out of a possible

10. Post-operative radiculopathy with associated lower extremity weakness, numbness and pain

with left foot drop, secondary to the negligent, experimental placement of PMMA in Plaintiff


LA2243553.1218545-10001

33

Thomas Olive’s lumbar disc space, has left him with permanent and unrelenting chronic debility

and low back pain.

190. Finally, Plaintiff Thomas Olive is the owner of Olive Branch Coffee Incorporated.

Plaintiff Thomas Olive was unable to work for two years as a result of the injuries he sustained at

the time of the incident made the basis of this claim. During this time period, Plaintiff Thomas

Olive had to pay his son-in-law to run the business with the help of Plaintiff Thomas Olive’s

wife.

191. On February 13, 2008, Plaintiff Shirley Walls had an MRI of the lumbar spine,

ordered by Art Snyder, M.D., for chronic lower back pain and a history of rheumatoid arthritis.

The findings of this MRI were the following: at L2-3 there was a broad-based disc bulge and

minor facet arthropathy with mild canal stenosis but no significant neural foraminal narrowing.

At L3-4, there was a broad-based disc bulge, mild canal stenosis but no significant neural

foraminal narrowing. At L4-5 there was a broad-based disc bulge and severe bilateral facet

hypertrophy. A cystic fluid signal abnormality was thought to likely represent a small synovial

cyst at this level.

192. There was also noted to be severe canal stenosis at this level with cerebral spinal

fluid well inter-digitates between the nerve rootlets. Moderate to severe left and mild right

neural foraminal narrowing was also present. Fat was noted to be surrounding the exiting L4

nerve root. At L5-S1 there was a minor broad-based disc bulge, minor facet hypertrophy and no

significant canal stenosis or neural foraminal narrowing present.

193. On April 1, 2008, Plaintiff Shirley Walls underwent spinal surgery in the

operating room at GCR Hospital. The operative report was signed by Defendant Bryant. The

billing information indicates that the attending physician was Defendant Schlicht. Plaintiff


LA2243553.1218545-10001

34

Shirley Walls’ Medicare Summary Notice indicates that her medical insurance with Medicare

was billed for surgical services provided by Defendant Schlicht for lumbar spine fusion, epidural

injections and low back disc surgery. However, an invoice dated June 5, 2008, sent to Plaintiff

Shirley Walls from Southwest Orthopaedics, contains charges filed with Medicare by Defendant

Bryant for performing “low back disc surgery I decompression”...and “Nerve Root Block

Lumbar.”

194. Plaintiff Shirley Walls never met Defendant Bryant. She understood, and

consented to the surgery on the basis that Defendant Schlicht would perform the surgery.

195. Upon information and belief, Plaintiff alleges that Defendant Schlicht acted as

primary surgeon, and Defendant Bryant acted as assistant surgeon, in the surgery of April 1,

2008.

196. The procedure that was performed by Defendants Bryant and Schlicht in the April

1, 2008 surgery was endoscopic discectomy of L5-S1, “interpositional arthroplasty” of L5-S1

and transforaminal epidural steroid injection of L5- S1. The pre and post-operative diagnoses

were degenerative disc at L5-S1 and axial back pain.

197. The Operative Report for the surgery states that disc nuclear material between L5-

S1 was removed and PMMA was injected into the nuclear disc space. Following that, a

transforaminal block was given on both the right and left sides of L5-S1.

198. Plaintiff Shirley Walls received a letter dated September 7, 2008, from Defendant

Schlicht. In this letter, Defendant Schlicht stated that he was leaving his practice in Alamogordo

in October 2008 in order to attend additional training in new spine surgeries in Arizona.

Defendant Schlicht also stated that Defendant Bryant would be available to “resume care for

you.”


LA2243553.1218545-10001

35

199. Insertion of PMMA is an experimental procedure. This experimental procedure

was done at L5-S1 on Plaintiff Shirley Walls.

200. Insertion of PMMA is unsafe, untested, unapproved by the FDA or any other

regulatory body, and not reimbursable by any insurance carriers.

201. Plaintiff Shirley Walls did not know, and was never told by any Defendant, that

PMMA was not safe or effective for her spinal surgery and not approved or recognized in the


202. Plaintiff Shirley Walls further did not know, and was never informed by any

Defendant, or anyone at GCR Hospital, that Defendant Schlicht was merely an anesthesiologist

who had no training as a surgeon.







patients such as Plaintiff Shirley Ward at GCR Hospital.


Plaintiff Shirley Ward has been permanently injured. As a consequence of what happened in the

surgery, Plaintiff Shirley Ward has had difficulty sleeping due to her continued lower back pain,

has problems with walking, sitting and standing for extended periods of time, experiences

numbness and tingling in her outer thighs, has stiffness in her back, takes Clonazepam at night to

sleep, uses a cane and has to sit on a pillow.


LA2243553.1218545-10001

36

206. Plaintiff Theresa Crawford had a history of cervical spine surgeries in 1993 and

1995 for advanced degenerative disc disease at C5-6 and C6-7.

207. On May 16, 2008, Plaintiff Theresa Crawford consulted Defendant Schlicht

regarding a complaint of bilateral upper extremity pain and parasthesias with worsening

symptoms of neck pain and upper extremity pain. Defendant Schlicht’s conclusion was that

Plaintiff exhibited “C4-C5, C5-C6 disc pathologies, C6-C7 surgical fusion.”

208. On June 6, 2008, Plaintiff Theresa Crawford consulted again with Defendant

Schlicht, to discuss surgical intervention. Defendant Schlicht was of the opinion that Plaintiff

Theresa Crawford had severe C5-C6 degenerative disease and a subluxation of 3mm at C4-C5.

Defendant Schlicht discussed with Plaintiff Theresa Crawford the risks and benefits of

performing an anterior cervical discectomy at C4-C5 and C5-C6, and a date for surgery was

arranged.

209. On June 19, 2008, Plaintiff Theresa Crawford underwent surgery at GCR

Hospital. The records of this surgery indicate that a complete anterior cervical discectomy with

interbody arthrodesis of C4-5 and C5-6 was performed, involving the placement of interbody

spacer devices, screws and plate.

210. Defendant Schlicht is identified in hospital records as the admitting doctor for this

surgery. Defendant Schlicht ordered Plaintiff Theresa Crawford pre-operative testing, including

lab work and chest x-ray.

211. The pre-operative H & P for the surgery was signed by Defendant Schlicht.

Defendant Schlicht noted in his H & P that he obtained the written consent for surgery from

Plaintiff Theresa Crawford.


LA2243553.1218545-10001

37

212. Defendant Bryant signed both the operative report and a discharge summary.

Defendant Schlicht authored and signed a separate discharge summary as well, with instructions

regarding self-care and follow-up appointments.

213. The OR Nursing Record for Plaintiff Theresa Crawford’s surgery documents that

Defendant Bryant acted as the “primary physician” and “primary surgeon,” and Defendant

Schlicht as “surgeon.”

214. Plaintiff Theresa Crawford did not know Defendant Bryant. At no time before,

during, or after the surgery was she aware that Defendant Bryant would be participating in any

way in the surgery. At no time did Plaintiff Theresa Crawford consult with Defendant Bryant.

215. Prior to the surgery, Defendant Schlicht had informed Plaintiff Theresa Crawford

that he (Schlicht) would be performing the surgery. Plaintiff Theresa Crawford consented to the

surgery on this basis.

216. Plaintiff Theresa Crawford considered Defendant Schlicht her surgeon and

primary physician for the surgery and care she received in 2008.

217. Plaintiff Theresa Crawford had post-surgical follow-up consultations with

Defendant Schlicht in June, July and November of 2008.

218. Defendant Schlicht is actually an anesthesiologist by training. He is not and never

has been trained as a neurosurgeon, a spine surgeon, a back surgeon, an orthopedic surgeon, or

any kind of surgeon.

219. Plaintiff Theresa Crawford did not know, and was never informed by any of the

Defendant, that Defendant Schlicht was not a surgeon.

220. Defendants Schlicht and Bryant negligently performed the surgery of June 19,

2008.


LA2243553.1218545-10001

38

221. As a result of the surgery and Defendants’ acts, and Defendant Schlicht’s lack of

surgical training, upon information and belief knowing that Defendant Schlicht was not qualified






patients such as Plaintiff Theresa Crawford at GCR Hospital.


Plaintiff Theresa Crawford has been permanently injured. In July 2011, Plaintiff Theresa

Crawford consulted Gill Gurden, M.D. in Lubbock, Texas. X-rays performed at that time

demonstrated a graft between C4 and C5 that is quite wide in appearance, indicating there is no

circulation there. Further, a screw evidently is loose and may be causing the swallowing

difficulties. Neurologically Plaintiff Theresa Crawford has some burning sensation down the

right arm.

224. Further, Plaintiff Theresa Crawford experiences neck pain, difficulty sleeping,

headaches, pain down her right shoulder and right arm and a catching sensation when she turns

her neck. For the past three years, Plaintiff Theresa Crawford has a physical therapist come to

her house one to two times a week. She has difficulty swallowing and sometimes her neck locks

up with spasms.


Plaintiff Clarence Crawford suffers and continues to suffer damages for the value of the loss of

consortium of Plaintiff Theresa Crawford.


LA2243553.1218545-10001

39

226. In January 2006, Plaintiff Linda McKinney had a known history of degenerative

spondylolisthesis at L4-L5 with central and foraminal spinal stenosis causing intractable back

and buttock pain (sciatica) that did not respond to conservative care. Plaintiff Linda McKinney

consulted Defendant Bryant, who, on January 3, 2006, performed a laminectomy decompression

via a transforaminal lumbar interbody fusion at L4-L5 utilizing bits of locally harvested bone,

pedicle screws and spacer devices. In the operative record, Defendant Bryant noted that he

achieved complete decompression of the dural tube, as well as the exiting L4 nerve roots and the

descending L5 roots. In his Discharge Summary on January 6, 2006, Defendant Bryant noted

that Plaintiff Linda McKinney still had some back pain when she was discharged home but that

she had “good relief of leg pain.”

227. In 2007, Plaintiff Linda McKinney consulted Defendant Schlicht for complaint of

lumbosacral low back pain. She was admitted to GCR Hospital by Defendant Schlicht on March

7, 2007, for a right sacroiliac joint injection and bilateral L5-S1 facet joint injections with anti-

inflammatory and steroidal medication. Defendant Schlicht noted that Plaintiff Linda McKinney

had failed conservative care and had refractory low back pain and that she was tender in the

areas of the right sacroiliac joint and at the lumbosacral junction. Defendant Schlicht repeated

this procedure in April 2007.

228. Plaintiff Linda McKinney continued to have back pain that was unrelieved by

medical interventions. The decision was made to remove the hardware at L4-5.

229. On October 15, 2007, Plaintiff Linda McKinney was admitted to GCR Hospital

by Defendant Bryant, who, in the H & P, documented that Plaintiff Linda McKinney had chronic

low-grade backache, pain with extension, tenderness on the paraspinal muscles on the left side

over the area of the previous spinal instrumentation. Defendant Bryant referenced imaging


LA2243553.1218545-10001

40

studies, x-rays and MRI of the lumbar spine which he stated demonstrated an anterior

pseudoarthrosis of the L4-L5 interspace and associated facet arthritis at LS-S1. Defendant

Bryant’s assessment at that time was symptomatic psuedoarthrosis lumbar spine, back pain, and

facet arthritis at L5-S1. He stated: “I think the patient would benefit from removal of the spinal

instrumentation, percutaneous fusion of the L5-S1 facets as well as the L4-5 facet on the right.

The symptomatic anterior pseudoarthrosis can be treated with percutaneously placed polymethyl

methacrylate.” Furthermore, he stated: “Both [Defendant] Schlicht and I explained the novel use

of polymethylmethacrylate in the disc space to stabilize the presumed symptomatic

pseudoarthrosis. We offered her alternative surgery, including exploration of the fusion mass

with iliac crest bone grafting. Given the two choices, the patient has opted for alternative fusion

arthroplasty of the disc space with polymethylmethacrylate coupled with removal of the spinal

instrumentation.”

230. Therefore on October 15, 2007, the following surgical procedure was performed

on Plaintiff Linda McKinney at GCR Hospital: removal of the previously placed spinal and

segmental hardware at the L4-5 level (the left L4, L5 pedicle screw and connecting rod), facet

fusion L5-S1 bilaterally, and “fusion arthroplasty” at L4-5. PMMA was placed into the disc

space between L4-L5 as part of the “fusion arthroplasty.”

231. Upon information and belief, Plaintiff Linda McKinney alleges that both

Defendants Bryant and Schlicht participated in performing this “fusion anthroplasty” surgical

procedure on Plaintiff Linda McKinney.

232. By November 2009, Plaintiff Linda McKinney reportedly was experiencing

recurrent low back and leg pain. Imaging reportedly showed that she had severe degenerative

disc disease at L3-4 and Defendant Bryant recommended a lateral interbody fusion of the L3-L4


LA2243553.1218545-10001

41

disc with placement of bone morphogenetic material. Defendant Bryant documented that the

MRI dated October 14, 2009, demonstrated no central stenosis at L4-L5 but that at L3-4 there

“are severe degenerative disc changes, degenerative facet joints with associated disc space

narrowing and foraminal stenosis.”

233. On November 19, 2009, Defendant Bryant performed anterior lumbar interbody

fusion utilizing the lateral technique at L3-L4 with application of anterior spinal instrumentation

and bone morphogenetic protein. The disc was completely removed, spacers were inserted and

bone graft material was utilized supplemented with the bone morphogenetic protein “because of

the patient's diabetes.” A graft containment device was applied to the vertebral bodies of L3 and

L4 with carbon screws. Plaintiff Linda McKinney was discharged by Defendant Bryant on

November 20, 2009. He stated in his discharge summary that she had no leg or back pain at the

time of discharge, and that she was ambulatory.

234. In December 2009, Defendant Bryant sent a letter to Plaintiff Linda McKinney's

primary care physician, Sungho Jun, M.D., and he advised Dr. Jun that Plaintiff Linda.

McKinney “had a previous arthrodesis of L4-L5. She had done well after surgery, but then

developed so called functional disease. Failing conservative care, the patient had operative

treatment with interbody fusion of L3-L4 about six weeks ago. The patient has had improvement

in her back pain. She is only taking Tylenol for discomfort....The x-rays of the lumbar spine

show the spacer devices to be in good position. At this time I will let her have activity as

tolerated...”

235. Fusion arthroplasty with insertion of PMMA is an experimental procedure. This

experimental procedure was done at disc spaces L4-L5 on Plaintiff Linda McKinney on October

15, 2007, as alleged above.


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42

236. Fusion arthroplasty with insertion of PMMA is unsafe, untested, unapproved by

the FDA or any other regulatory body, and not reimbursable by any insurance carriers.

237. Plaintiff Linda McKinney did not know, and was never told by any Defendant

that PMMA was not safe or effective for her spinal surgery and not approved or recognized in

the field of medicine for such surgery.

238. Plaintiff Linda McKinney further did not know, and was never informed by any

Defendant that Defendant Schlicht was not trained as a surgeon.







patients such as Plaintiff Linda McKinney at GCR Hospital.


Plaintiff Linda McKinney has been permanently injured. She now has persistent low back pain,

has difficulties with standing and lifting, and as a consequence has had to quit her jobs with K-

Mart and Wal-Mart. Additionally, she has discomfort cleaning house, experiences incontinence,

problems sleeping at night because of persistent discomfort, cannot tolerate walking more than

short distances, must walk with a cane, and has lost the ability to have marital relations with her

spouse.


LA2243553.1218545-10001

43


Plaintiff Arthur McKinney suffers and continues to suffer damages for the value of the loss of

consortium of Plaintiff Arthur McKinney.

243. On July 11, 2007, Plaintiff Barbara Olson was admitted by Defendant Schlicht to

GCR Hospital with a presumed diagnosis of mechanical lumbosacral spine pain, and bilateral

extremity pain, after she had failed conservative care including injections. Plaintiff Barbara

Olson's previous medical history was recorded as osteoarthritis.

244. When she was admitted to GCR Hospital, the pre-operative diagnoses for Plaintiff

Barbara Olson were lumbar spinal stenosis L5-S1 and lumbar facet arthropathy L5-S1

bilaterally.

245. On July 11, 2007, Defendant Schlicht performed the following surgical procedure

on Plaintiff Barbara Olson at GCR Hospital: L5 laminectomy I decompression and bilateral L5-

S1 facet fusion. Defendant Schlicht documented that bone dowels devices were placed in

Plaintiff Barbara Olson's L5-S1 joint space, followed by a laminectomy at the same level.

246. Defendant Schlicht billed Plaintiff Barbara Olson’s insurance carrier for these

surgical services.

247. On July 31, 2007, Plaintiff Barbara Olson consulted Defendant Schlicht in pre-op

visit in Defendant Schlicht’s office at GCR Hospital.

248. On August 8, 2007, Plaintiff Barbara Olson was again admitted to GCRMC for a

surgical procedure. On this occasion, Defendant Schlicht diagnosed Plaintiff Barbara Olson as

having advanced C5, 6 and 7 degenerative disc disease which required surgical intervention. In

the body of the H & P, Defendant Schlicht documented that Plaintiff Barbara Olson had

mechanical cervical spine pain and upper extremity radiculopathy.


LA2243553.1218545-10001

44

249. Defendant Schlicht reports that he discussed with Plaintiff Barbara Olson an

anterior cervical discectomy and fusion of C5, 6 and 7, and that she wished to proceed.

250. Therefore on August 8, 2007, Plaintiff Barbara Olson again underwent spinal

surgery at GCR Hospital, at the hands of Defendant Schlicht. The operative report for this

procedure documented that Defendant Bryant was the Surgeon, and Defendant Schlicht as the

assistant for this surgery. However, on information and belief, Plaintiff Barbara Olson alleges

that Defendant Schlicht was the primary surgeon, and Defendant Bryant acted as assistant

surgeon in this surgery. The exact procedure that was performed is not identified in the

operative report for the surgery of August 8, 2007.

251. The operative report for the surgery of August 8, 2007, dictated by Defendants

Bryant and Schlicht, does state that bone graft material was harvested from Plaintiff Barbara

Olson's left hip. Following that, the discs were removed between C6-7 and C5-6, and spacers

filled with cortical bone graft were inserted into each space. A plate and screws were then

utilized to complete the fusion.

252. Defendant Schlicht is actually an anesthesiologist by training. He is not and never

has been trained as a neurosurgeon, a spine surgeon, a back surgeon, an orthopedic surgeon, or

any kind of surgeon at all.

253. Plaintiff Barbara Olson did not know, and was never informed by any Defendants,

that Defendant Schlicht was not a surgeon.

254. Defendants Bryant and Schlicht negligently performed the surgeries of July 11

and August 8, 2007.


LA2243553.1218545-10001

45







patients such as Plaintiff Barbara Olson at GCR Hospital.


Plaintiff Barbara Olson has been permanently injured. Plaintiff Barbara Olson has persistent

back pain and cannot work. The level of her discomfort requires that she take strong pain

medications routinely. Plaintiff Barbara Olson cannot tolerate performing her activities of daily

living without significant discomfort and has trouble ambulating for extended periods of time as

well as problems sitting and standing for any length of time.

258. Plaintiff Barbara Olson did not know, and no Defendant ever told her, that the

conduct of Defendants, including Defendant Schlicht’s conduct in performing surgery on her

without having had any surgical training was the cause of her injury and disability.

259. In 2008, Plaintiff Paul Strunk consulted with Defendant Schlicht at GCR Hospital

regarding Plaintiff Paul Strunk’s chronic back and thigh pain.

260. On March 12, 2008, Plaintiff Paul Strunk underwent spinal surgery in the

operating room at GCR Hospital.

261. It was Plaintiff Paul Strunk’s understanding that Defendant Schlicht would

perform the surgery. However, the operative report lists Defendant Bryant as the Surgeon and

Defendant Schlicht as the Assistant for the March 12, 2008 surgery. Upon information and


LA2243553.1218545-10001

46

belief, Plaintiff Paul Strunk alleges that Defendant Schlicht acted as the primary surgeon, and

Defendant Bryant assisted in the surgery.

262. The operating report for this surgery indicates that Defendants performed removal

of the previously placed non-segmental spinal instrumentation, and “percutaneous discectomies”

at two levels: L2-L3 and L3-L4, with “interpositional arthroplasties” at these two levels, in

addition to a “facet fusion” at L5-S1.

263. During this surgery, PMMA was injected into the L2-L3 and L3-L4 disc spaces of

Plaintiff Paul Strunk’s spine, following endoscopic discectomies at those two levels. It was

noted in the operative report that PMMA was injected into Plaintiff Paul Strunk’s disc spaces

while still in the “very early doughy stage,” and “after the material cured” the cannulas were

removed that were utilized to inject PMMA. Defendant Bryant signed the operative report

electronically.

264. Before being taken to the recovery room, an epidural steroid injection was

reportedly done at the L3-L4 level for postoperative pain control. The surgical services record

documents the use of “cement” manufactured by Stryker as an implant material used during

Plaintiff Paul Strunk’s procedure.

265. Percutaneous discectomies with interpositional arthroplasties and facet fusion

with insertion of PMMA is an experimental procedure. This experimental procedure was done

on two lumbar levels of Plaintiff Paul Strunk.

266. Percutaneous discectomies with interpositional arthroplasties and facet fusion

with insertion of PMMA is unsafe, untested, unapproved by the FDA or any other regulatory

body, and is not reimbursable by any insurance carriers.


LA2243553.1218545-10001

47

267. Plaintiff Paul Strunk did not know, and was never told by any Defendant, that

PMMA was not safe or effective for his spinal surgery and not approved or recognized in the


268. Plaintiff Paul Strunk did not know, and was never informed by any of the

Defendants that Schlicht was not a surgeon.

269. Defendant Schlicht and Defendant Bryant negligently performed the surgery of

March 12, 2008.







patients such as Plaintiff Paul Strunk at GCR Hospital.


Plaintiff Paul Strunk has been permanently injured. Prior to the March, 2008 surgery performed

by Defendant Schlicht, Plaintiff Paul Strunk could walk, heel rise and toe rise, and he exhibited

symmetric deep tendon reflexes. After the surgery, and following post-operative MRI imaging,

Defendant Bryant advised Plaintiff Paul Strunk that his back surgery was not performed

properly. As a result of the March, 2008 surgery, Plaintiff Paul Strunk has experienced a loss of

sensation in his bilateral lower extremities, suffers from frequent low back spasms and he cannot

walk, sit or stand for extended periods of time.


LA2243553.1218545-10001

48

273. In 2008, Dr. Bryant diagnosed Plaintiff Janice Bergeron as having a herniated disc

at L4-L5, spinal stenosis at L4-L5, and intractable leg and back pain.

274. On July 17, 2008, Plaintiff Janice Bergeron underwent surgery at GCR Hospital.

The operative report lists Defendant Bryant as the surgeon, but upon information and belief

Plaintiff Janice Bergeron alleges that Defendant Schlicht performed the surgery with the

assistance and participation of Defendant Bryant.

275. Plaintiff Janice Bergeron never met Defendant Bryant, and was never informed

that Defendant Bryant performed or would perform the surgery. The operative report indicates

that, in this surgery, Defendant Bryant performed a “transforaminal lumbar fusion” of L4-L5

with discectomy on Plaintiff Janice Bergeron. In this procedure, bone was harvested for the

fusion from the iliac crest and PMMA was then utilized to close the defect in the iliac crest.

PMMA thus was injected into the disc space between L4-L5.

276. On September 13, 2011, Plaintiff Janice Bergeron consulted Dr. Stephen Otero

regarding her continued back and left hip pain. She reported having chronic pain on a pain scale

of 6 out of 10 when walking or standing, with associated leg pain. Upon Dr. Ortero's

examination there was decreased range of motion and tenderness in the left hip and decreased

range of motion, tenderness and bony tenderness in the low back. Low back imaging was

ordered.

277. On September 26, 2011, Plaintiff Janice Bergeron followed up with Dr. Otero

regarding the MRI of her lumbar back and was advised that there is a “small amount” of

“cement” filling the L4-L5 disc space “which has extravasated into the post-sacral soft tissues.”

278. Transforaminal lumbar fusion with insertion of PMMA is an experimental

procedure. This experimental procedure was done at disc spaces L4-L5 on Mrs. Bergeron.


LA2243553.1218545-10001

49

279. Transforaminal lumbar fusion with insertion of PMMA is unsafe, untested,


carriers.

280. Plaintiff Janice Bergeron did not know, and was never told by any Defendant, that

PMMA was not safe or effective for Plaintiff Janice Bergeron's spinal surgery and not approved

or recognized in the field of medicine for such surgery.

281. Plaintiff Janice Bergeron further did not know, and was never informed by any

Defendant that Defendant Schlicht was not trained as a surgeon.







patients such as Plaintiff Janice Bergeron at GCR Hospital.


Plaintiff Janice Bergeron has been permanently injured. Specifically, Plaintiff Janice Bergeron

experiences chronic unrelenting low back pain and associated lower extremity weakness, pain

and numbness. Plaintiff Janice Bergeron was recently prescribed Hydrocodone for the pain.

285. Additionally, Plaintiff Janice Bergeron experiences muscle spasms, problems

controlling her bladder, experiences constipation, is unable to sit, stand or walk for extended

periods of time; is unable to sleep well and only sleeps about two hours at a time; must sit on a

foam pad, use a special pillow which vibrates on her back for ease of pain, no longer has good


LA2243553.1218545-10001

50

balance, has trouble performing housework, has difficulty in the shower, is unable to bend down

to wash her feet and is in constant pain.

IV. COMMON COUNT I - MEDICAL NEGLIGENCE AS

TO DEFENDANT SCHLICHT


287. Defendant Schlicht is an anesthesiologist by training who has undergone a one-

year pain medicine fellowship.

288. Defendant Schlicht negligently and/or intentionally, created a false impression to

his patients that he received training as a neurosurgeon or spine surgeon.

289. In treating Joint Plaintiffs, Defendant Schlicht failed to possess and apply the

knowledge and to use the skill and care of reasonably well qualified physicians practicing in the

specialty of orthopedic surgery, and were thereby negligent. Said negligence includes, but is not

limited to, the following:

a. Failure to properly treat Joint Plaintiffs’ medical

conditions;

b. Failure to properly perform or assist in the surgery of any

Joint Plaintiff.

c. Negligently performing experimental procedures on Joint

Plaintiff by injecting PMMA. PMMA is not now, and never has been, injected

into the intervertebral disc space because PMMA causes a chronic inflammatory

state (called “reactive endplate changes”) at the bone-PMMA interface.


LA2243553.1218545-10001

51

Histopathologically, the chronic inflammatory state induced by PMMA contact on

bone is a foreign-body reaction that precludes bony ingrowth or fusion. This

PMMA toxicity actually causes bone resorption from the vertebral endplate, also

known as osteolysis. PMMA is very hard but brittle, and it has long been known

to displace, spell, fracture and extrude when subjected to loads and repetitive

stress, which are inevitable with upright posture. If Plexiglas debris impinges on

adjacent nerve roots or the spinal cord, it causes pain, debility and injury. Once

injected, PMMA is virtually impossible to completely remove from the disc

space.

290. As a result of the negligence of Defendant Schlicht, Joint Plaintiffs became

permanently disabled, in constant excruciating pain, and unable to engage in the daily activities

they once enjoyed prior to coming under Defendants Schlicht’s and Bryant’s care.

291. Defendant Schlicht was negligent and fell below the standard of care normally

and reasonably required of a physician exercising ordinary care under New Mexico law.

292. Defendant Schlicht had a duty to Joint Plaintiffs, to provide non-negligent

services.

293. Defendant Schlicht's negligence was a cause and contributed to the cause of Joint

Plaintiffs’ injuries.

294. Joint Plaintiffs’ injuries detailed herein were reasonably foreseeable consequences

of Defendant Schlicht's negligent acts.

295. Defendant Schlicht's negligent acts, and departures from acceptable standards of

care, include but are not limited to: a) Subjecting Joint Plaintiffs to a surgical procedure called


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52

“percutaneous disc arthroplasty”; b) Failing to disclose to Joint Plaintiffs the true risks, benefits,

and alternatives to PMMA; c) Misrepresenting to Plaintiff that he was as surgeon.

V. COMMON COUNT II MEDICAL NEGLIGENCE AS

TO DEFENDANT BRYANT


297. In treating Joint Plaintiffs, Defendant Bryant failed to possess and apply the

knowledge and to use the skill and care of reasonably well-qualified physician practicing in the

specialty of orthopedic surgery, and was thereby negligent. Said negligence includes, but is not

limited to, the following:

a. Failure to properly treat Joint Plaintiffs’ medical conditions;

b. Failure to properly perform lumbar spine surgery;

c. Failure to disclose to Joint Plaintiffs that PMMA is not now, and never has

been, injected into the intervertebral disc space because PMMA causes a chronic inflammatory

state (called “reactive endplate changes”) at the bone-PMMA interface. Histopathologically, the

chronic inflammatory state induced by PMMA contact on bone is a foreign body reaction that

precludes bony ingrowth or fusion. This PMMA toxicity actually causes bone resorption from

the vertebral endplate, also known as osteolysis.

298. As a result of the negligence of Defendant Bryant, Joint Plaintiffs became

permanently disabled, in constant excruciating pain, and unable to engage in the daily activities

they once enjoyed prior to coming under Defendants Bryant’s and Schlicht’s care.


LA2243553.1218545-10001

53

299. Defendant Bryant was negligent and fell below the standard of care normally and

reasonably required of a physician exercising ordinary care under New Mexico law.

300. Defendant Bryant had a duty to Joint Plaintiffs, to provide non-negligent services.

301. Defendant Bryant's negligence was a cause and contributed to the cause of Joint

Plaintiffs’ injuries.

302. Joint Plaintiffs’ injuries detailed herein were reasonably foreseeable consequences

of Defendant Bryant's negligent acts.

303. Defendant Bryant's negligent acts, and departures from acceptable standards of

care, include but are not limited to: a) Subjecting Joint Plaintiffs to a surgical procedure called

“percutaneous disc arthroplasty”; b) Failing to disclose to Joint Plaintiffs the true risks, benefits,

and alternatives to PMMA; c) Misrepresenting to Plaintiff that he was as surgeon.

VI. COMMON COUNT III MEDICAL NEGLIGENCE AS

TO GCRMC DEFENDANTS


305. Upon information and belief, GCRMC contracted with Defendants Schlicht and

Bryant to perform surgical procedures on patients such as Joint Plaintiffs in its facility, and

assisted Defendants Schlicht and Bryant in such procedures by providing surgical support staff

and equipment.

306. GCRMC knew or reasonably should have known that Defendants Schlicht and

Bryant were conducting such procedures on patients including Joint Plaintiffs in a negligent and

reckless manner as to cause or increase the risk of serious injury to patients, including Joint

Plaintiffs, and did nothing to deter Defendants Schlicht and Bryant from said conduct and in fact

assisted both in such conduct.


LA2243553.1218545-10001

54

307. Upon information and belief, GCRMC, Schlicht and/or Defendant Bryant were

engaged in a joint venture with joint right of control and joint agency or employment, that results

in GCRMC jointly and severally liable for the negligence of Defendants Schlicht and Bryant as it

pertains to the treatment and care of Joint Plaintiffs.

308. GCRMC is responsible and liable for the negligence of Defendants Schlicht and

Bryant because at all material times they both were acting as a joint employee or agent of

GCRMC.

VII. COMMON COUNT IV NEGLIGENT HIRING AND CREDENTIALING


310. GCRMC is liable for directly and proximately contributing to the injuries of Joint

Plaintiff by holding Defendants Schlicht and Bryant out to Plaintiffs, and the general public, as

neurosurgeons and concealing information from patients such as Joint Plaintiffs about the

qualifications and credentials of Defendants Schlicht and Bryant.

311. GCRMC is also liable for directly and proximately contributing to the injuries of

Joint Plaintiffs by negligently credentialing and/or retaining Defendants Schlicht and Bryant with

privileges to practice medicine within its walls when it knew, or should reasonably have known,

that Defendants Schlicht and Bryant engaged in negligent and reckless patterns of practice.

312. GCRMC is also liable for directly and proximately contributing to the injuries of

Joint Plaintiffs by improperly and inaccurately billing the procedures performed by Defendants

Schlicht and Bryant on Joint Plaintiffs.

313. Joint Plaintiffs relied on the representations of GCRMC regarding the

qualifications and credentials of Defendants Schlicht and Bryant.


LA2243553.1218545-10001

55

314. GCRMC knew that the representations they were making regarding the

qualifications of Defendants Schlicht and Bryant were false, but did so simply for monetary gain.

Said representations were fraudulent and made with the intent to deceive patients like Joint

Plaintiffs.

315. As a direct and proximate result of GCRMC’s negligence, Plaintiff Judy Ann

Ferguson and Plaintiff Otis Ferguson suffer and continue to suffer damages described elsewhere

in the Complaint.

316. As a direct and proximate result of GCRMC’s negligence, Plaintiff Linda Hoefler

and Plaintiff Victor Wilkerson suffer and continue to suffer damages described elsewhere in the

Complaint.

317. As a direct and proximate result of GCRMC’s negligence, Plaintiff Joel Crossno

and Plaintiff Vivian Crossno suffer and continue to suffer damages described elsewhere in the

Complaint.

318. As a direct and proximate result of GCRMC’s negligence, Plaintiff Mickie

Francis suffers and continue to suffer damages described elsewhere in the Complaint.

VIII. COMMON COUNT V PUNITIVE DAMAGES

319. Joint Plaintiffs reallege all above paragraphs by reference.

320. The conduct of Defendants and GCRMC in failing to properly treat Joint

Plaintiffs’ medical conditions, performing unnecessary and/or inappropriate medical procedures

on Joint Plaintiffs, concealing information from Joint Plaintiffs about the propriety of the

procedures being recommended and performed, improperly and inaccurately billing for the

surgical procedures, concealing information about the relationship of the Defendants, and

concealing information from Joint Plaintiffs about the professional qualifications of the surgeons


LA2243553.1218545-10001

56

was more than ordinarily negligent, and was reckless, willful, wanton and performed with utter

disregard of Joint Plaintiffs’ health and safety.

321. Joint Plaintiffs are entitled to and should be awarded punitive damages against

Defendants.

IX. COMMON COUNT VI DAMAGES

322. Joint Plaintiffs reallege all above paragraphs by reference.

323. As a direct result of the negligence of Bryant, Schlicht, GCRMC, their employees,

agents, and apparent agents, Joint Plaintiffs have suffered the following damages:

a. The reasonable expense of necessary past and future medical care and

related treatment, including daily caretaking expense;

b. Lost earnings and lost earning capacity;

c. Past, present and future lost household services and recreational activity;

d. Past, present and future emotional and physical pain and suffering,

including permanent impairment, disability, disfigurement, lost enjoyment of life and lost life

expectancy; and

e. Punitive damages.

324. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Otis

Ferguson is entitled to an award of damages for the value of the loss of consortium of Plaintiff

Judy Ann Ferguson.


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57

325. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Victor

Wilkerson is entitled to an award of damages for the value of the loss of consortium of Plaintiff

Linda Hoefler.

326. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Vivian

Crossno is entitled to an award of damages for the value of the loss of consortium of Plaintiff

Joel Crossno.

327. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Karen

McCullough is entitled to an award of damages for the value of the loss of consortium of

Plaintiff Michael McCullough.

328. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Herbert

Robbins is entitled to an award of damages for the value of the loss of consortium of Plaintiff

Kelly Robbins.

329. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Martha

Bunsen is entitled to an award of damages for the value of the loss of consortium of Plaintiff

Rodney Bunsen.

330. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Royce

Morton is entitled to an award of damages for the value of the loss of consortium of Plaintiff

Edna Morton.

331. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Clarence

Crawford is entitled to an award of damages for the value of the loss of consortium of Plaintiff

Theresa Crawford.


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58

332. As a direct result of the negligence of Defendants and GCRMC, Plaintiff Arthur

McKinney is entitled to an award of damages for the value of the loss of consortium of Plaintiff

Linda McKinney.

WHEREFORE, Joint Plaintiffs respectfully request that the Court find in their

favor and against Defendants in an amount sufficient to compensate Joint Plaintiffs for all

damages, injuries, losses, costs and interest recoverable under the law, for punitive damages, and

for such further relief as the Court may deem proper.

Dated: September 7, 2012 LOEB & LOEB LLP

By: /s/ Bernard R. Given IIBernard R. Given IILoeb & Loeb LLP10100 Santa Monica Blvd., Suite 2200Los Angeles, CA 90067-4120Tel: 310-282-2000Fax: [email protected]

Attorneys for Joint Plaintiffs


united states bankruptcy court district …...las cruces, dona ana county, new mexico. case...

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