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Attorneys seek dismissal in malpractice suit

By Staff | Jul 6, 2008

Attorneys for Fairmont Orthopedics & Sports Medicine and a former doctor have asked a malpractice suit against their clients be dismissed.

In an hour-long hearing, James Roegge and Gerald DeLoss presented their arguments June 24 before Faribault County District Judge Douglas Richards.

Speaking on behalf of his client Dr. James Schwartz, Roegge told Richards attorneys for the plaintiff, Urban Neisen, have failed to show negligence on the part of the defendants.

A complaint filed January names Schwartz, Fairmont Orthopedics & Sports, certified registered nurse anesthetist Robert Karl and United Hospital District.

In his suit, Neisen contends movement of his head during spinal surgery resulted in serious injury.

“The defendants failed to correctly position and monitor Neisen’s head position during surgery, causing trauma to his eye which resulted in permanent blindness in his left eye,” says the complaint.

Although Schwartz was the lead surgeon, says Roegge, it was Karl’s responsibility to monitor Neisen’s head position.

“The argument they make of joint liability is meritless,” Roegge says. “They have to link up negligence of my client to the injury. They don’t link up pre-op decisions to the injury.”

Neisen’s attorney, Timothy McCarthy, says Schwartz’s attorney is overreading the state statute. And, is trying to get out of it on a technicality.

McCarthy cited a medical expert saying that use of a headrest during surgery was inappropriate and may have caused the injury.

“It seems pretty simple. I caution the court that it is not as complicated as they are saying,” McCarthy told Richards.

Roegge countered by saying the Mayfield headrest is FDA approved and its use is standard practice.

Roegge disputed use of the so-called “captain of the ship” doctrine in an attempt to lay the sole blame on his client. “There is no law in the state that recognizes this. Everyone is evaluated on their performance and they have their specialized field of training,” Roegge says.

Karl’s attorney Trina Alvero says her client has a “narrow view” regarding the case.

She says the lawsuit is not at the point of establishing who or what caused Neisen’s blindness.

“The chain of events begins with the pre-diagnosis and the decision to use a headrest during surgery,” she says. “I ask the court not to cut off that chain of events that may determine chain of causation.”

Roegge says lawyers for the defendant acknowledge the surgeon, Dr. Schwartz, has no responsibility to monitor head movement of the patient.

“You can dice this and mince it anyway you want. You can’t change the facts. That’s the flaw in their case,” Roegge adds.

Richards took the motion under advisement. A trial is expected to take place sometime next March or April.

UHD was named in the suit as a negligent and respondent supervisor because Schwartz, Karl and Fairmont Orthopedics were acting as agents of the hospital.

The complaint says, “UHD owes a duty to Neisen to exercise reasonable care in supervising its employers and independent contractors as to avoid endangering him. They failed to use reasonable care in supervising.”

Neisen has been required, says the complaint, to expend substantial sums of money for medical, hospital and related care and will be required to do so in the future — all in excess of $50,000.