IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS CIVIL DEPARTMENT

DONA MEISINGER, Plaintiff, v. WILLIAM REED, M.D., Defendant.

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Case No. 11MED3

WRITTEN CONTENTIONS OF DEFENDANT WILLIAM O. REED, M.D. Defendant William Reed, M.D. by and through his attorneys, pursuant to Kansas Supreme Court Rule 142(d)(5), submits the following written contentions, in opposition to those submitted by Plaintiff Dona Meisinger, for review and consideration by the medical screening panel in this case. INTRODUCTION Plaintiff Dona Meisinger filed her request to convene medical malpractice screening panel on October 31, 2011 in the District Court of Johnson County, Kansas against Dr. William O. Reed, Jr., M.D. In her request, Ms. Meisinger generally claims that Dr. Reed provided her with negligent medical care in relation to spinal surgery that she underwent on October 31, 2007. The District Court of Johnson County, Kansas issued an order convening a malpractice careening panel and appointed Jeff Brown to serve as the non-voting chairperson of the panel. The court likewise directed the parties to select a medical screening panel consisting of three licensed physician and forward written briefs and

other materials outlining their respective positions to the chairperson for distribution to the panel. On September 25, 2013, Ms. Meisinger served her written contentions and accompanying medical records on counsel for Dr. Reed and Mr. Brown. Plaintiffs contentions lay out her theory of this care which is premised on allegations of medical negligence. Dr. Reeds contention will address issues raised by Plaintiff and establish no breach of the standard of care and, by necessity, no causation. STATEMENT OF FACTS Dona Meisinger first presented to Dr. William Reed on May 4, 2006 as a 57 yearold woman with complaints of sciatic-like back pain as a result of a fall on September 13, 2005. (Tab #2 Document # 020004). Prior to seeing Dr. Reed, Ms. Meisinger had undergone lumbar epidural steroid injections, physical therapy, acupuncture treatments, and massage therapy for her back pain. (Tab #2 Document # 020004). At that time, Dr. Reed determined that Ms. Meisinger possibly had spinal stenosis. (Tab #2 Document # 020004). Ms. Meisinger saw Dr. Reed again on May 9, 2006 and reported back pain, left leg pain, and knee pain, and she reported that she was taking narcotics for pain prescribed from her other physicians. (Tab # 2 Document # 020007). In reviewing a MRI scan taken previously, Dr. Reed identified that degenerative disc changes at L4-5 and L5-S1 with a possible lateral herniation at L5-S1. (Tab # 2 Document # 020007). Of note, Ms. Meisinger was using crutches at this visit as a result of her knee pain and Dr. Reed referred her to Dr. Hopkins for her knee complaints. (Tab # 2 Document # 020007).

After his initial consultations with Ms. Meisinger, Dr. Reed ordered a myelogram and CT scan which indicated that Ms. Meisinger has a ganglion and a ganglionectomy was scheduled for May 24, 2006. (Table # 3 Document # 30012). During this operation, Dr. Reed excised a ganglion emanating from the L4-L5 disk space and the facet joint was excised to prevent recurrence. (Table # 3 Document # 30012). Additionally, fusion was carried out on the left side at L4-L5 and transverse process fusion was carried out using autologus bone at L4-L5. (Table # 3 Document # 30012). On June 5, 2006, Ms. Meisingers staples were removed, and she was overall much improved. (Tab # 2 Document # 020009). Dr. Reed requested that she return for an appointment in one month. (Tab # 2 Document # 020009). Ms. Meisinger returned on June 27, 2006 and was feeling much better, and she reported only right leg pain where she had a pending knee replacement. (Tab # 2 Document 20012). Dr. Reed requested that she return for another appointment in three months. (Tab # 2 Document 200012). On October 2, 2006, Ms. Meisinger came in for an appointment and a review of her x-rays indicated slight spondylolisthesis at L4-L5, but it appeared stable, neither better nor worse on flexion and extension. (Tab # 2 Document #020015). Ms. Meisinger reported that she was still experiencing some left-sided pain, and Dr. Reed documented that it was clear that the fusion did not prevail on the left side at L4-L5. (Tab # 2 Document #020015). Dr. Reed planned to watch her carefully and see her again in three months. (Tab # 2 Document #020015). Dr. Reed next saw Ms. Meisinger on January 23, 2007. (Tab # 2 Document # 020020). At this visit, it was noted that her back felt tired, and the x-rays did not indicate any changes, only slight anterolisthesis at L4-L5. Dr. Reed prescribed physical

therapy for Ms. Meisinger. (Tab # 2 Document # 020020). On May 31, 2007, Ms. Meisinger reported back pain to Dr. Reed, and he believed that her spondylolisthesis at L4-L5 may need to be addressed and requested a follow-up visit in 6 months or sooner if the back pain worsened. (Tab #2 Document # 020026). Ms. Meisinger returned on September 28, 2007 with worsening discomfort due to the severe degeneration at L5-S1 and spondylolisthesis at L4-5. (Tab # 2 Document # 020028). At that time, Dr. Reed discussed performing a fusion at both levels with posterior lumbar interbody fusion approach. Dr. Reed discussed the options, alternative, and complications. (Tab # 2 Document # 020028). After attempting the conservative treatment described in detail above and considering her options, Ms. Meisinger indicated that she wanted to proceed with the surgery. (Tab # 2 Document # 020028). On October 31, 2007, Dr. Reed performed a L4-S1 posterior lumbar interbody fusion. (Tab # 3 Document # 030023). During the procedure, pedicle screws were properly placed at L4 and L5 and radical diskectomy was carried out at L5-S1. (Tab # 3 Document 030026). Once the pedicle screws were in place, distraction was carried out, and a laminactomy, the radical diskectomy was carried out at L4-L5, and radical diskectomy was carried out at L5-S1. (Tab # 3 Document 030026). An oblique lordotic cage was inserted at L4-L5 and at L5-S1. (Tab # 3 Document 030026). Rods were then connected to preserve lumbar lordosis, and the acquired bone graft was then placed appropriately. (Tab # 3 Document 030026). Ms. Meisinger was taken to the recovery room in good condition. (Tab # 3 Document 030026). Dr. Reed saw Ms. Meisinger at three follow up visits between her surgery and February 5, 2008. (Table # 2 Document #s 020030, 020033, 020037). At all of these

appointments, Ms. Meisinger reported that she was doing well and still experiencing some pain, but she was attending physical therapy for rehabilitation and pain management. (Table # 2 Document #s 020030, 020033, 020037). On February 5, 2008, Ms. Meisinger indicated that she was doing well and felt much better than she did prior to surgery. (Tab # 2 Document # 020040). Dr. Reed reported that Radiographically, her L4-5 and L5-Si fusion appears united. (Tab # 2 Document # 020040). In a handwritten letter from Ms. Meisinger, she thanked Dr. Reed stating, I would again like to express my gratitude for your expertise and how blessed and I feel to have found you. (Tab # 2 Document # 020042).1 ADD THE MRI FROM 1/2010! On April 20, 2011, Dr. Norman Bamber saw Ms. Meisinger for back pain and difficulty standing up. (Tab # 19 Document # 190041). Ms. Meisinger also reported that she was limited walking distance without increasing her back pain and that it would radiate into bilateral anterior thighs and buttocks. (Tab # 19 Document # 190041). Dr. Bamber ordered an MRI and a copy of the MRI is enclosed on a CD. The MRI demonstrated that there was a 7 mm of anterolisthesis of L3 on L4, and there was a 3mm of retrolisthesis of L2 on L3. (Tab 26 Documents 261212-261213). The MRI showed that the prior lumbar fusion performed by Dr. Reed was intact, and the pedicle screws, rods, and cage were in the proper position.2 (MRI, Tab Document..)

STATEMENT OF LAW
1

The are a voluminous amount of medical records from Ms. Meisingers last appointment with Dr. Reed until she began treatment with Dr. Bamber. While these do not appear to be pertinent to the allegations in Ms. Meisingers Petition and involve other treatments and procedures, nevertheless and in the abundance of caution, the records have been included for your review in considering this matter. 2 In Ms. Meisingers contentions, she alleges that a titanium cage was used for the lumbar fusion; however, Dr. Reed used a peak cage in Ms. Meisingers surgery. Accordingly, in reviewing Ms. Meisingers MRI, there will not be a titanium cage present.

The following are statements of law taken directly from Kansas case, statutes, rules, and jury instructions, and constitute the applicable law both in medical malpractice screening panels and in medical malpractice cases in the State of Kansas. In evaluating the claims of negligence set forth by Ms. Meisinger in her written contentions, the panel must apply and abide by the law described below: 1. Under K.S.A. 65-4903, the screening panel shall decide, after considering the

medical records and contentions of the parties, whether there was a departure from the standard of practice of the health care provider specialty involved whether a causal relationship existed between the damages suffered by the claimant and any such departure. The screening panel must then prepare a written opinions of its findings. See Kansas Supreme Court Rile 142(d)(10). In doing so, the panel shall: A. state the standard of practice of the health care provider specialty or profession involved under the facts of the claim; B. state whether there was a departure from the standard of practice of the health care provider specialty or profession involved and the facts in support of a finding of departure, if any is found; C. if a departure is found, state whether a causal relationship exists between the claimed injury sustained by the plaintiff and such departure. If a causal relationship is found, state the facts in support of such causal relationship; or D. if the screening panel is unable to make a finding of either no departure or no causal relationship or both, so state giving the reasons therefore. Id. 2. In order to prevail on her medical negligence claims against Dr. Reed, Ms.

Meisinger must prove four elements: (1) the existence of a duty (i.e. identification of the

standard of care at issue); (2) breach of that duty (i.e. deviations from the standard of care); (3) injury; and (4) a causal connection between the duty breached and the injury suffered. Watkins v. McAllister, 59 P.3d 1021, 1023 (Kan. Ct. App. 2002). Each of these fours elements must be proven for there to be a finding of liability against Dr. Reed. For example, as to the fourth element, commonly referred to as causation, Ms. Meisinger must prove casual relationship between the claimed injury (pain in her low pain and leg pain) and alleged negligence acts or omissions of Dr. Reed. More specifically, Ms. Meisinger must prove that any negligent act was a direct and proximate cause of the claimed injury. Simpson v. Davis, 549 P.2d 950, 954 (Kan. 1976). However, a physician cannot be liable for damages unless they are the direct result of some negligent act or omission on his part. Bacon v. Mercy Hosp. of Ft. Scott, Kansas, 756 P.2d. 416, 424 (Kan. 1988). Nor does liability arise if the adverse resultis dur to some cause other than treatment by the physician. Latshaw v. Mt. Carmel Hospital, 53 F. Supp, 2d 1133, 1139 (D. Kan. 1999). 3. The burden of proving each of the four elements of medical negligence is on Ms.

Meisinger and she must do so by a preponderance of the evidence. Pip v. Hamilton, 56 P.3d 823, 827 (Kan. 2002). Preponderance of evidence is defined as evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. Ortega v. IBP, Inc., 874 P.2d 1188, 1197 (Kan. 1994). in other words, a preponderance of the evidence which shows a fact is more probably true than not true. Id. (emphasis added). 4. Dr. Reed foes not have an affirmative burden to disprove any of Ms. Meisingers

allegations in this matter. Moreover, a physician does not guarantee good results and no

liability arises merely from bad results. Wozniak v. Lipoff, 750 P.2d 971, 988 (Kan. 1988). In other words, [n]egligence is never presumed, and may not be inferred merely from a lack of success or an adverse result from treatment. Bacon, 756 P.2d at 420; see also Tatro v. Lueken, 512 P.2d 529, 534 (Kan. 1973) (holding a physician or surgeon is presumed to have carefully and skillfully treated or operated [on] his patients and there is no presumption of negligence to be indulges from the fact of injury or adverse result). In the present case, Ms. Meisinger cannot prevail against Dr. Reed simply because she subjectively believes that her pain is the result of Dr. Reeds surgery. Instead, Ms. Meisinger must prove by a preponderance of the evidence that Dr. Reed deviated from the applicable standard of care and directly caused her claims injuries. ARGUMENT AND ANALYSIS In light of the context of the legal principles discussed above and mindful of the fact that Ms. Meisinger can only prevail on her claims if the evidence, as a whole, established that it is probably more true than not true that Dr. Reed acted negligently. Dr. Reed would offer the facts set forth above to show that he neither deviated from the standard of care in his treatment of Ms. Meisinger, no caused her any claimed injuries. In short, Dr. Reed was not negligent because Ms. Meisingers lumbar fusion operation was properly performed, intact, and presumptively successful?? As set forth in the facts above, Ms. Meisinger was a woman suffering

Respectfully submitted,

__________________________________ BK Christopher KS # 16387 John B. McEntee, Jr. KS # 21992 Horn Aylward & Bandy, LLC 2600 Grand Boulevard, Suite 1100 Kansas City, Missouri 64108 (816) 421-0700 (816) 421-0899 (Facsimile) Attorneys for Defendant William Reed, M.D.

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was sent via United States Mail, postage prepaid on this 9th day of December, 2011, addressed to: Michael L. Sexton Sexton & Shelor 6901 Shawnee Mission Pkwy., Suite 111 Shawnee Mission, KS 66202 (913) 789-7477 FAX (913) 789-7377 Attorneys for Plaintiff

______________________________ Attorney