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Case of the Month

West's® Jury Verdicts - Nevada Reports

Physiatrist Accused of Failing to Recognize Symptoms of Failed Surgery

Mace v. Poindexter

Type of Case:
Medical Malpractice-Procedures & Treatment - Failure to Diagnose/Treat
Medical Malpractice-Physicians & Health Professionals - Physiatrist/Rehabilitation Medicine
Medical Malpractice-Facility - Clinic/Center/Group
Defamation - Slander
Intentional Torts - Infliction of Emotional Distress
Negligent Infliction of Emotional Distress
Labor & Employment - Workers Compensation
Vicarious Liability

Specific Liability:
Physiatrist failed to recognize symptoms of failed surgery, accused patient of disability fraud, ending patient's workers' compensation medical benefits

General Injury:
Delayed diagnosis, emotional distress, loss of consortium, monetary damages

Jurisdiction:
State: Nevada
Court: District Court of Nevada, Eighth Judicial District, Clark County.

Related Court Documents:
Plaintiff's second amended complaint: 2007 WL 6969145
Defendants' answer: 2007 WL 6969144
Jury instructions: 2009 WL 4543054
Verdict form: 2009 WL 4542888
Plaintiff's motion for new trial: 2009 WL 4543053
Defendants' opposition: 2009 WL 4543052
Order: 2009 WL 4571500
Plaintiff's expert witness Thomas Carroll's report: 2005 WL 6410771
Defendants' expert witness Todd Moldawer's report: 2005 WL 6389371
Plaintiff's expert witness Joseph Doerr's report: 2005 WL 6389373

Case Name:
Timothy Mace and Judy Mace v. Curtis W. Poindexter, MD; Mountain Rehabilitation Services; and Poindexter & Associates Ltd.

Docket/File Number:
A471982

Verdict:
Defendants, $0

Verdict Date:
May 8, 2009

Judge:
James A. Brennan

Attorneys:
Plaintiff: Ivy Gage and Noel A. Gage, Gage & Gage, Las Vegas, Nev.

Defendants: Arthur W. Tuverson, Law Offices of Arthur W. Tuverson, Las Vegas, Nev.; Randa Reiff Shea and M. Sami Bakdash, Pearson, Patton, Shea, Foley & Kurtz, Las Vegas, Nev.

Trial Type:
Jury

Experts:
Plaintiff: Thomas Carroll, PhD, economist, Thomas Carroll and Associates Consulting Economists Ltd., Las Vegas, Nev.; Joseph J. Doerr, MD, physiatrist, Somerset, Mass.; Gary Flangas, MD, neurosurgeon, Henderson, Nev.

Defendant: Jorge D. Minor, MD, physiatrist, Hollywood Pain Center, Los Angeles, Calif.; Todd D. Moldawer, MD, orthopedic surgeon, Southern California Orthopedist Institute, Van Nuys, Calif.

Unspecified: John G. Frazee, MD, neurosurgeon, UCLA Neuropsychiatric Institute, Los Angeles, Calif.

Breakdown of Award:
$0

Summary of Facts:
Timothy Mace reportedly sustained a work-related back injury during his employment at the Las Vegas Hilton in August 1998. He was treated for his injuries through the hotel's workers' compensation program administered by Gallagher Bassett Services Inc.

Mace said he underwent a spinal fusion procedure in January 2001, after more conservative care did not resolve his injury. Following his surgery, his care was transferred to Mountain Rehabilitation Services (“MRS”). While treating at MRS, he said, he was given pain medications and facet and steroid epidural injections.

Mace reported that while being cared for by MRS, his pain persisted, but his physician, Rodney Thorley, MD, failed to recognize that he exhibited symptoms of a failed fusion. After Thorley left MRS, Curtis W. Poindexter became Mace's physician.

According to Mace, Poindexter treated him with various medications, including Vicodin, Oxycontin, Soma, Vioxx and Prevacid, and released him to return to light-duty work and authorized him to drive.

In November 2001, Poindexter reportedly requested authorization for a CT myelogram for Mace, which was granted. However, later that month, Poindexter allegedly wrote a re-evaluation of Mace, stating: “What is interesting is the fact that I was able to see at least one surveillance tape of Mr. Mace, which totally discounts his behavior and presentation in my office and would make me wonder if he now only presents himself in a much more disabled fashion in front of me, yet also towards his wife, or if both are involved in some disability game that is being played at present.” The patient said Poindexter faxed the re-evaluation to Gallagher Bassett.

Poindexter discharged Mace on Nov. 14, reporting that Mace was “stable” and “ratable.” Mace said his medical benefits then terminated.

Approximately one year later, Mace obtained diagnostic testing on his own and learned he had a failed fusion, he claimed.

Mace filed a complaint against Poindexter, MRS, Poindexter & Associates, and Gallagher Bassett in the Clark County District Court. In a second amended complaint, Gallagher Bassett was no longer listed as a defendant. Mace alleged the physician breached the standard of care owed to Mace by failing to follow through with the appropriate and required diagnostic testing, discharging Mace as stable and ratable without conducting appropriate testing and failing to refer Mace back to his treating neurosurgeon for evaluation.

In his second claim for relief, breach of fiduciary duty, the plaintiff claimed Poindexter and MRS owed him a fiduciary duty under the workers' compensation plan, and they breached the duty by accusing him of fraud rather than investigating the cause of his complaints.

The plaintiff went on to allege defamation and intentional and negligent infliction of emotional distress against Poindexter.

Mace's wife, Judy Mace, alleged loss of consortium. Judy Mace's claims did not remain for trial.

The plaintiffs sought general, compensatory and punitive damages.

The plaintiff's expert Thomas Carroll estimated Mace's economic loss to be between $1.3 and $1.7 million.

The defendants answered together and denied the allegations of wrongdoing. The defendants asserted various affirmative defenses, including: pre-existing condition, they acted in accordance with the standard of care and punitive damages were not warranted and would be unconstitutional.

Defense expert Todd Moldawer, MD opined that the surgeon, Benjamin Venger, MD, was responsible for the patient's post-operative monitoring, and that duty could not be delegated to Poindexter, a physiatrist.

In May 2009, a jury empanelled before Judge James A. Brennan found in favor of the defendants.

Court: District Court of Nevada, Eighth Judicial District, Clark County.

Westlaw Citation:
2009 WL 5449882

West's Jury Verdicts - Nevada Reports Citation:
West's J.V. Nev. Rep., Vol. 5, Iss.11, p. 7 (2009)