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In any span of 45 minutes in the Justus v. Rosner medical malpractice practice case, the facts seem straightforward, even unassailable.
But assailed they are.
With Superior Court Judge Zoro J. Guice Jr. granting lawyers wide berth to question witnesses, jurors have been whipsawed by the competing visions of medical diagnostics, standards of care, cause-and-effect and even the economics of health care. The process often subjects witnesses to four rounds of interrogation — a direct examination, cross-examination, redirect and recross.
Billy Bruce Justus is suing neurosurgeon Michael Rosner over procedures he performed on Pamela Jane Justus, claiming that the surgeries left her immobile and contributed to her death 12 years later. Over the past three weeks of a trial that could drag into October, the lawyers have put on a clinic of how to deconstruct what seems in the moment to be a relaible set of facts. From the start of this epic battle of rhetoric and legal firepower, the lawyers have high-mindedly told the jury that a trial is at its essence about one thing: the search for truth. That truth — as they have shown, deliberately or not — can be a slippery rascal to trap.
The plaintiffs argue that Rosner performed an unnecessary surgery in June of 2000 that instead of curing Pam Justus's headaches left her wheelchair-bound and unable to lift her head and — by leaving her immobile and unable to exercise — contributed to her death.
Defense attorneys have called physicians, surgeons and other medical experts who have testified that Pam Justus suffered from many serious medical problems, was obese all her adult life and was a heavy smoker. Rosner's surgeries in 2000 and 2001, they argue, were medically warranted and a nonfactor in her death 12 years later.
On Day 13 of the trial, Phillip Jackson, an attorney for Adventist Health System, led a witness through testimony about Rosner's two surgeries on Pamela Justus, in June 2000 and February 2001.
One of the pivotal questions in the trial has been whether Rosner's surgeries were in fact "experimental" or research. The plaintiffs assert he and Park Ridge Hospital promoted the procedures as a pioneering treatment for fibromyalgia and chronic fatigue syndrome — traditional surgery for nontraditional reasons.
Lawyers spent half a day parsing answers that Dr. Loran D. Hauck had given on the topic during a deposition in May.
Senior vice president and chief medical officer for Adventist Health System, Hauck testified that he is responsible for six broad areas of clinical staff performance and accountability: quality, patient safety, patient experience, evidence-based medicine, clinical decision support and clinical analytics.
During the deposition, plaintiff's attorney Mark Hoffman said: "Adventist Health System does not condone performing traditional surgical procedures for nontraditional reasons. Isn't that true?"
"Yes, unless that was being done in the context of an IRB-approved research protocol," Hauck replied then, referring to an independent review board medical experts say must oversee experimental surgery.
But that answer, defense attorney Jackson said, did not mean what the plaintiffs say it means.
"Should this jury infer in any way," he said, "that what you said in that deposition means that you thought Dr. Rosner was performing research for experimental purposes?"
"Absolutely not," Hauck said, adding that he had reread "several pages of back and forth" during the deposition. "The second time, it was more general, and my answer was, 'No, we don't condone that.'"
The defense, which began its case on Monday, Aug. 25, and is not yet halfway through, has also worked assiduously to rebut the plaintiff's evidence about Rosner's reasons for the cervical surgeries he performs. Rosner has never, the defense insists, claimed that his surgeries cure fibromyalgia or chronic fatigue syndrome.
The plaintiffs created a poster-board blowup of a marketing promotion about Dr. Rosner, and have asked many witnesses about it. Wade Byrd, the chief plaintiff's lawyer, posed questions about it to Dr. Todd Guthrie, who was chief of surgery when Rosner operated on Pam Justus.
"Are you aware," Byrd said, "that the hospital put out on their website that Dr. Rosner had arrived on the scene, which was wonderful news for millions of Americans who suffered from fibromyalgia and chronic disease syndrome?"
Guthrie said he wasn't.
The website said: "Dr. Michael Rosner has concentrated his efforts here in helping those patients that have symptoms found most often associated in fibromyalgia and chronic fatigue syndrome. Dr. Rosner does a surgical procedure (to remedy) cranial cervical decompression, (which) helps those who present with a variety of problems, including symptoms like numbness in the extremities, chronic pain and headaches as well as general weakness. To date Dr. Rosner has done about 70 of these procedures here at Park Ridge Hospital and has a success rate of about 85 percent."
Under questioning last week by defense attorneys, however, Dr. Hauck said that part of the marketing pitch fails to tell the complete story.
The website text went on to say: "After a patient has been referred to Dr. Rosner, a complete assessment by him, sometimes including new MRI scans, as well as a comprehensive history and physical examination, will determine whether or not a person is a candidate and would most benefit from the surgery."
That part of the message, Hauck said, supports the defense's argument that Rosner reviews every patient's case thoroughly and carefully before deciding on surgery.
"I think one of the issues at stake in this trial is whether or not patients with chronic fatigue syndrome and fibromyalgia were referred to Dr. Rosner and/or sought him out because they had read about him on the website," Hauck said. "What this says is if a patient self-refers themselves to Dr. Rosner or is referred by a referring physician all these things happen — a thorough history, a comprehensive physical and neuro-examination, a review of existing medical records and if deemed necessary a new repeat MRI scan to determine whether or not neurologic findings of Chiari syndrome are present on the scan."
"One sentence, that has all the 'nots' in it is very inelegantly written — it's a horrible sentence, some marketing person must have written it. But if you read the rest of the website carefully it's very clear what happens, what was happening and what happens today."
Three weeks of evidence and close to a hundred hours of testimony have moved the two sides no closer to agreeing on a subject that is supposed to have absolute rules — arithmetic.
Byrd has brandished financial records showing Rosner's surgeries accounted for 30 and 33 percent of the hospital's profit in 2000 and 2001. Jacqueline Grant, an attorney for Park Ridge, has walked several witnesses through financial numbers showing the percentages to be 7-8 percent.
In an apparent reference to the gap in the two numbers, Grant asked Dr. Guthrie: "When you look at that income, that's because there's adjustments, there's costs, things of that nature that could change the makeup or the percentage. Is that fair to say?"
"Yeah, first of all you can bill a lot but you only get so paid so much," he said. "Then, you may have some revenue but if you're doing an expensive procedure, you're using a lot of equipment. The hospital may get a lot of revenue but if their costs are high, that income is not going to be that high."
Guthrie, an orthopedic surgeon who has since left Park Ridge for California, said Rosner did not seem to have a substantially bigger caseload. "He didn't seem too much busier than I was, in terms of actual O.R. time," he said.
Grant showed Guthrie figures indicating that in 2002 Park Ridge reported net revenue of $48.5 million and net profit of $8 million and the following year net revenue of $50 million and net profit of $8.15 million.
She said: "So it's fair to say that when Dr. Rosner was no longer on staff the hospital's net revenue and net profit still continued to increase, without Dr. Rosner?"
"That's what happened," Guthrie said.
Under cross-examination, Byrd came back to the plaintiff's set of figures that he said shows Rosner accounting for $1.4 million, or 30 percent, of the hospital's profit in 2000.
If Rosner did account for a high percentage of hospital profit, there's good reason for it, Dr. Hauck said under a line of questioning by the defense team.
"It has to do with the phrase payer mix," he said. Internal medicine has an "adverse" payer mix — offering more routine patient treatment that makes the provider little money. In pediatrics, "we're lucky to break even."
"Internal medicine, unless you do procedures like heart caths or endoscopies, is not profitable," Hauck said. "Surgeries is where hospitals make the vast majority of their profit, and certain types of surgeries are more profitable than others."
In a knee replacement, "You have to implant a very expensive piece of hardware in the person — an artificial knee," he continued. "Those things cost six, seven, eight thousand dollars. They cost a lot of money. So by the time you take the fact that Medicare's paying for it (at a lower rate than the hospital wants), you've got an expensive piece of hardware, the profit margin and the net revenue on that kind of surgery may not be as profitable as a neurosurgical procedure, which is primarily the skill of the surgeon's hands, not the hardware you're putting in.
"You may get paid $30,000 to replace the knee, $30,000 to do a cervical laminectomy" — a surgery Rosner performed routinely. "As a result, if one has $10,000 worth of hardware and the other doesn't, it's more profitable," Hauck said. "The insinuation that there was something nefarious about the fact that Park Ridge hired a neurosurgeon to its medical staff and suddenly started having a very profitable service line — that's the explanation."
Rosner's attorney, Scott Stevenson, guided Hauck through the neurosurgeon's notes on his examination of Pam Justus, his interpretation of her MRI and his diagnosis of her problem. She suffered from cervical stenosis — a narrowing of the spinal canal, and her symptoms — urinary incontinence, weakness and numbness — were consistent with cervical myelopathy caused by cervical stenosis, Stevenson said. Rosner operated on Pam Justus, Stevenson said, for symptoms "that are consistent with a cervical myelopathy owing to a cervical stenosis."
He asked Hauck: "As much as this (plaintiff's) table would like the jury to believe that Mrs. Justus was being treated by Dr. Rosner for chronic fatigue syndrome or fibromyalgia, is there any evidence whatsoever of that in the documents?"
"I can find no evidence," Hauck responded, "that that was Dr. Rosner's clinical assessment or that he documented anything to that effect in the medical records that I have reviewed."
Byrd then showed Hauck a medical record from Park Ridge Medical Associates in December 1999 showed fibromyalgia as part of her diagnosis.
"Does it make any sense to you that six months later, Mrs. Justus would say, 'No, I don't have fibromyalgia. I've never heard of that.'"
Hauck responded it was possible she might not have known of that diagnosis.