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Jury sides with patient after two wayward back surgeries

Correction: An earlier version of this post failed to include a response provided by the attorney for the defense. A response from the plaintiff’s counsel also has been included. We regret the error.

A St. Louis County jury awarded $1 million in damages to a Franklin County woman whose doctor operated on the wrong side of her back — only to compound the error during a corrective procedure one day later.

The award was adjusted to slightly less than $460,000 under the state’s cap on noneconomic damages in such cases.

Natalie Avilez sued Dr. Fangxian Chen and Mercy Clinic East Communities in January 2021 over a pair of surgeries seven months earlier at Mercy South Hospital.

According to the lawsuit and plaintiff’s attorney Morgan Murphy of Zevan Davidson Roman in St. Louis, Chen operated on her client’s left side rather than right side on June 8, 2020, unable to locate the herniated disc he expected to find.

A second operation was scheduled for the following day. But this time, the surgeon repeated a miscalculation that he had also failed to detect one day earlier.

“The planned surgery was a right-sided T7-8 surgery,” Murphy said. “He counted from the plaintiff’s ribs to find the correct level in the thoracic spine, assuming that her big 11th rib was the 12th rib, not realizing that the plaintiff had small 12th ribs.

The error caused Chen to operate on the T6-7 level, one level higher than planned.

“During the second surgery, he repeated his counting error and used the incision from the previous day as a reference point, causing him to operate on the right T6-7 level of the spine, where he again did not find the herniated disc he expected to see,” Murphy said.

It was only after consulting a radiologist during the second surgery that Chen realized his error, she said, but did not disclose that he operated on two levels of her spine that day.

Chen was dismissed from the suit three days before trial, leaving Mercy Clinic as the sole defendant.

Jared Howell of Hamilton Weber, an attorney for the clinic, said in an emailed statement that medical experts at trial agreed Chen complied with the standard of care prior to making the first incision and that he immediately informed Avilez when he realized his mistake in the first surgery.

He added that Chen wasn’t aware of the abnormality in Avilez’s ribs prior to the surgeries and that he’d paused the second surgery to ask a radiologist for new spine images when the disc material he encountered was less than expected.

“Dr. Chen and Mercy admitted surgery on Ms. Avilez was performed on the wrong side and level,” he wrote. “However, Mercy believed that although mistakes were admittedly made, Ms. Avilez suffered no significant or permanent injury as a result, and her later and current complaints are not related to the surgical care.”

Howell added that arguments that Mercy took no responsibility for the mistake are “inaccurate and disingenuous,” as the health care provider had paid for and written off bills related to the surgeries and the associated follow-up care. Murphy, however, responded that Avilez had applied to and was accepted to Mercy’s charity program well before she treated with Chen.

The case is now on appeal.

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$1 million verdict

Medical malpractice

Breakdown: $550,000 in past noneconomic damages, $450,000 for future noneconomic damages. Award capped at $457,749 total noneconomic damages

Venue: St. Louis County Circuit Court

Case Number/Date: 21SL-CC00047/Feb. 9, 2023

Judge: Stanley Wallach

Plaintiff’s Expert: Dr. John Ciccarelli, Overland Park, Kansas (orthopedic surgery)

Defendant’s Expert: Dr. Thomas Sylvester, Creve Coeur (orthopedic surgery)

Last Pretrial Demand: $270,000

Last Pretrial Offer: $75,000

Caption: Natalie Avilez v. Mercy Clinic East Communities

Plaintiff’s Attorneys: Morgan Murphy and Rachel Roman, Zevan Davidson Roman, St. Louis

Defendant’s Attorney: Jared Howell, Hamilton Weber, St. Charles

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