Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, January 15, 1995 TAG: 9501160022
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: SANDRA BROWN KELLY STAFF WRITER
DATELINE: LENGTH: Long
At least 40 patients - including eight who each have filed $1million malpractice suits - say a Salem spine surgeon either misled them about the outcome of their back surgery or physically injured them as a result of the treatment.
Lawsuits pending in Roanoke Valley and Richmond courts aim a variety of charges at Dr. Eric Korsh, a 36-year-old spine specialist and co-director of Lewis-Gale Clinic's Virginia Spine Center. Almost all, however, claim that Korsh either failed to recommend nonsurgical, conservative treatment of the plaintiffs' back problems or failed to explain the bone-fusion operation sufficiently to enable the patients to give informed consent.
Korsh recently settled one medical malpractice suit for $587,500.
Most of the pending suits name Korsh and Lewis-Gale Clinic as defendants. Several also list Lewis-Gale Hospital and say the hospital failed to sufficiently monitor surgery being done there. The hospital, which is owned by Columbia/HCA Corp., and the clinic, which is physician-owned, share a site.
In addition to the malpractice suits, more than 30 former patients have consulted two Roanoke attorneys saying they remain debilitated by back pain after spinal fusions performed by Korsh. Those former patients are seeking disability compensation from their employers.
Korsh's attorneys would not allow him to be interviewed for this story.
Hospital and clinic officials said the increasing legal pressure has prompted a close examination of the spine center's procedures.
The center has tightened criteria for selecting patients for surgery, said Dr. Bruce Hagadorn, medical director of the clinic. It also has lowered charges for the surgery because of pressure from insurance companies.
The spine surgery has meant an estimated $30million to $50million in gross revenue for Lewis-Gale Clinic, Lewis-Gale Hospital and the center's surgeons since 1991.
Fellowship-trained spine surgeons, who have had training beyond an orthopedic surgery residency, are a high-income group. It takes the promise of at least $225,000 in annual income to lure one to a community, Hagadorn said, and it can cost a lot more.
He said he recently saw a trade publication advertisement seeking a spine surgeon in the Logan, W.Va., area that guaranteed an annual income of more than $400,000.
"It's a high-tech, high-cost operation," Hagadorn said. "Can we justify it in the Roanoke Valley? It remains controversial, and we are watching it like a hawk."
Clinic and hospital officials say they have on file spine surgery consent forms signed by all patients who have filed suits or complaints. The officials said, too, that at least 100 operations per year have been on people injured at work. That group, the officials said, tends to seek legal redress, so a certain number of complaints could be expected.
A large number of workers compensation cases with back injuries is not unusual, and Korsh is not the only Roanoke Valley back surgeon to face a lawsuit, lawyers involved agree. But, they said, the number of complaints against the doctor is unlike anything the community has seen.
Roanoke lawyer Gary Lumsden said 70 percent of the 500 or so workers compensation cases he sees each year are back cases.
After Korsh arrived in Salem, however, Lumsden said he began to get a large number of Korsh's patients as clients. Lumsden said he has had as many as 50 Korsh cases at once; currently, he and a colleague have more than 30 cases in which Korsh was the surgeon.
In the eight years that Roanoke lawyer Dan Frith has been doing medical negligence suits, he said, the same doctor had not been involved in more than two separate cases until the spine suits began. Frith has filed four of the suits against Korsh and was the attorney for the suit that was settled.
Roanoke attorney Neil McNally and lawyers in Charlottesville and Richmond also represent patients who are suing Korsh for medical malpractice.
Like welding the spine
The lawsuits and legal complaints against Korsh raise a number of allegations. Among them: that surgeons at the spine center use experimental, unapproved surgical screws whose history of failure is emerging; that a number of patients selected for surgery were marginal candidates; and that Korsh used high-pressure sales techniques to get patients to agree to the operations.
Most of the cases at issue involved spinal fusion, and most also included the use of pedicle screws and other hardware to hold the spine stable during healing. Some of the patients had more than one surgery, including front and back fusions of the spine.
A fusion, which takes up to six months to heal, is like welding the spine. Two or more adjacent vertebrae are joined to prevent their movement. A small piece of bone taken from the pelvis is grafted to the bad vertebrae to promote new bone growth. Metal rods and screws are inserted in the spine pedicles, which are the side wings or bridges of the vertebrae, to bolt the vertebrae together.
National controversy surrounding the use of pedicle screws may be adding to complaints against Korsh, clinic and hospital officials said. While the U.S. Food and Drug Administration allows pedicle screws to be used with patient consent, it has not approved them and has forbidden manufacturers from promoting them.
One problem with the screws is that they sometimes break inside people's bodies; in addition, some people simply don't tolerate them well. The FDA says there is not enough information to document their safety and effectiveness. Several group lawsuits have been filed against the screw manufacturers.
A Pennsylvania court is considering whether the suits should be merged into a class-action suit; about 10 Roanoke-area residents are among 1,000 complainants in a suit being handled by a Tulsa, Okla., law firm.
The Lewis-Gale Virginia Spine Center cases involve more than the use of pedicle screws, however. Spinal fusion is considered salvage, or last resort, surgery, according to spine experts. Depending upon the diagnosis and patient group, the failure rate for fusions is 5 percent to 40 percent.
Korsh, however, told one patient who taped a conversation with the doctor that the patient was his only one for whom the fusion failed.
"You are my first patient ... that didn't work. The success rate is 98 percent. I've done about 300, so my experience is 99.5 percent now. Was a hundred percent," Korsh said in a transcript of the conversation that the patient provided to the newspaper.
Attorney Lumsden said his 30-some clients tell an almost identical story of their experiences with Korsh.
"That they were told the results will be perfect, and the alternative is paralysis," Lumsden said. "When the first person showed up with that story, I said 'Yeah, right.' Then came the next. And then a dozen.
"The problem I have with the whole scenario is that [Korsh] guaranteed results, that they'll be pain-free and back to work, and if they don't have the surgery, they'll be paralyzed," Lumsden said.
`I'm still walking'
Many patients referred to the spine specialists had previous back problems. That is true of most of the ones who are unhappy with their surgery results, but not all of them.
Patients interviewed said they would not have had the surgery if Korsh had not promised they would get better.
Gavin Fulton, 23, of Fincastle said Korsh "guaranteed to me and my mom that I'd be back to work."
Two years later, after a failed fusion and complications from the placement of a screw, Fulton still isn't working.
"I can stand for maybe five to 10 minutes, tops," said Fulton, an ex-Marine.
Raymond Moore, a 50-year-old construction worker from Blue Ridge, said he also got false promises.
"He told me I'd be absolutely pain-free," Moore said. Moore had three back surgeries in the late 1980s, but returned to work after them and said he expected to be able to do the same after the operation at Lewis-Gale.
Two years after the fusion operation by Korsh, he says he can't work and his back still hurts.
"I have to get on my knees to put my socks on," Moore said.
Korsh recommended further surgery on Moore's spine, a front and back fusion, but Moore said he refused.
"The reason I had the surgery in the first place is because I want to work," he said. "I thank God I'm still walking."
Construction worker Elliott Ertman also expected to return to work.
"He said I'd be back to work hanging drywall in three to four months, and said if I didn't have the surgery, I'd be bedridden and paralyzed," said Ertman, 34.
Ertman said his pain is so severe that he's unable to pursue his hobby of doing scrimshaw art, let alone work.
Fulton, Moore and Ertman are angry at Korsh, but aren't suing him. The former patients who have filed suits would not be interviewed on the advice of their attorneys.
Lawyer Richard Thomas, who also handles many workers compensation cases, said he has seen Korsh's patients who are unhappy and Korsh's patients who are "thrilled" with the surgeon's work.
"I have had patients tell me that he has spent time with them and gone over information in considerable detail," Thomas said.
However, a number of Thomas' clients told him that Korsh said their chances of improvement with surgery were in the "90 to 100 percent range."
Thomas said he has no way of knowing whether Korsh ever promised such odds, or if the patients were "hurting or financially desperate enough to hear what they want to hear."
Their comments "have had a thread of consistency," though, Thomas said.
Korsh completed his fellowship at the Hospital for Special Surgery at Cornell University Medical College in New York in 1991 and came to Lewis-Gale Clinic that same year.
Before the fellowship, Korsh was chief resident in orthopedic surgery at the Seton Hall University School of Graduate Medical Education in Paterson, N.J. He is a graduate of the University of Medicine and Dentistry of New Jersey and interned at St.Joseph's Hospital and Medical Center in Paterson.
In July 1992, Dr. James Leipzig, a University of California at Los Angeles graduate who had completed the same spine fellowship as Korsh, also joined the clinic. The two received certification from the American Board of Orthopaedic Surgery that year and in September 1993 became co-directors of the new Virginia Spine Center.
Leipzig's name seldom comes up in complaints, lawyers said.
The spine center's opening was touted in news stories and promoted with advertising; one plaintiff said in legal papers that he came to the center after seeing an advertisement for it. Floyd Patterson, a former world heavyweight boxing champion, brought further attention to the facility when he came to Salem in October 1993 to get a medical evaluation from Korsh.
When the center was announced, Korsh said the spine surgery offered at Lewis-Gale had attracted clients from all over the eastern United States.
Korsh and Leipzig have done 689 spinal fusion operations since 1991; 456 were done by Korsh.
The number of fusions done by Korsh dropped considerably last year, some of which could reflect a change in criteria for patient selection forced by the growing complaints about the spine specialist, clinic officials said.
Lewis-Gale Hospital hired Patrick O'Leary, a New York spine specialist who teaches in the fellowship program, to review its spine surgery cases. The clinic, at the direction of its insurer, also had the cases reviewed by an outsider.
One result of the reviews is greater use of psychological testing to determine if a particular patient will be mentally able to handle a surgical failure. It also tightened other criteria, Hagadorn said.
Korsh and Leipzig both have said in literature promoting the spine center that people who are not physically fit or who smoke and drink are often not good candidates for back surgery. Smokers have a lower rate of fusion success, studies show.
Many of the former patients interviewed were smokers at the time of their operations.
"We've got to do a much better job of case selection," Hagadorn said.
When Korsh came to Lewis-Gale, his fee for a front and back fusion using screws and rods, an operation that can take 10 hours, was $20,000 to $26,000.
Surgery fees were lowered considerably as a result of pressure from the insurers, Hagadorn said.
In retrospect, Hagadorn said, Lewis-Gale Clinic might not have made the right decision when it decided to bring such a high-tech specialty to a small community.
"If we knew two or three years ago what we know now, we might have rethought," he said.
The real test of the spine center will be the results of its surgeries, he said, and it takes four or five years of statistics to accumulate sufficient data.
"You have to look at how these people do down the road, what percent improve," Hagadorn said.
He said consultants didn't find any "outlyers" - surgeons who do procedures that aren't accepted practices - when they looked at Lewis-Gale's spine center.
"If we identify a [physician] quality problem, they won't be members of the community," he said.
Monday: Two Roanoke Valley women who have had back surgeries involving several doctors say they still suffer constant pain and want to start a support group especially for people whose surgeries included the use of pedicle screws.
by CNB