New testimony in bone cement case dismissed
Judge says the information provided won’t change ruling
A federal bankruptcy judge found the new testimony of a surprise witness too “inconclusive” to assign more fault — and potentially more financial culpability — to either a national hospital management firm or the Alamogordo hospital where dozens of patients were unwittingly subjected to experimental spine injections of bone cement.
The ruling by U.S. Bankruptcy Judge Robert H. Jacobvitz on Monday was a blow to the group of former patients of Dr. Christian Schlicht, who convinced them nearly a decade ago that his invention of injecting the disc space of the spine with hot cement was a noninvasive way to alleviate their back pain.
Former patients have reported complications that included intractable pain, weakness, numbness and, in some case, loss of bladder or bowel functions. Schlicht left the hospital in late 2008 and at one point was working overseas.
As the negligence case against Quorum Health Resources was headed into the damages phase last year, pain management specialist Dr. Robert
Zuniga of Albuquerque revealed at a deposition that a female administrator at Gerald Champion back in 2007 asked him to look at about a dozen charts of patients who had received the bone cement spinal injections. He said he was alarmed by what he saw, and told her the procedure was dangerous and should be stopped.
At issue for the plaintiffs, which at one time numbered 101, including spouses, was whether Zuniga’s information should increase the fault attributed to the hospital management firm.
A year ago, Jacobvitz found that Quorum Health Resources, hired by the Alamogordo hospital to provide a CEO and nonmedical services, could have spared the patients from harm beginning in September 2007 by ordering an outside investigation into Schlicht and his bone-cement procedure.
Jacobvitz found Quorum 16.5 percent at fault and this week didn’t change that percentage after considering Zuniga’s revelations. The judge last year found the hospital was 16.5 percent at fault, with Schlicht and another physician bearing the most culpability. They and the hospital settled out of court in 2012, and the plaintiffs received a partial settlement of $33 million.
Zuniga couldn’t recall the name of the person he spoke with more than a decade ago.
Lawyers for the former patients contended the administrator was Sue Johnson-Phillippe, the Quorum-hired CEO who helped hire Schlicht and left the hospital in mid-2007. Quorum, which is the remaining defendant in the case, pointed the finger at hospital administrative staff.
Jacobvitz, in his ruling, stated that Zuniga’s memory was vague and when pressed at a deposition, Zuniga said the conversation occurred in late 2007 — months after Johnson-Phillippe had resigned from the hospital.
QHR attorneys did take an affidavit on Nov. 4 from Johnson-Phillippe, who now lives out of state. She contended she never spoke to Zuniga and had no knowledge of such a request by a “female administrator.”
But QHR didn’t file the affidavit in court until Nov. 21, the last day of the discovery period. So Jacobvitz ruled her affidavit inadmissible because, as it was filed so late, the plaintiffs “didn’t have a fair opportunity” to respond.