Iowa Jury Awards $7.36 Million After Cervical Nerve Ablation Left Waterloo Man Without Feeling Below the Waist
After trial: The Iowa Court of Appeals affirmed the judgment on June 16, 2021, rejecting challenges to the negligence instruction, an expert deposition and the closing argument. We found no further review.
Won by RSH Legal.
A Waterloo man lost all feeling below the waist after a cervical radiofrequency ablation at the C5-6 level in December 2014. A Black Hawk County jury found Dr. Ashar Afzal and Cedar Valley Medical Specialists negligent and awarded $7.36 million to him and his wife. The Iowa Court of Appeals affirmed in 2021.
What happened
On December 30, 2014, Frederick Duitsman Jr. of Waterloo, Iowa, went to Dr. Ashar Afzal of Cedar Valley Medical Specialists for treatment of neck pain. Dr. Afzal performed a radiofrequency ablation, placing a needle into Duitsman's neck at the C5-6 level under x-ray guidance to burn the targeted nerves. He also injected a numbing agent mixed with Depo-Medrol, a particulate steroid, at the site. Duitsman went home that day without any apparent complication.
The next morning he woke with no feeling from the neck down. That sensation returned, but he was diagnosed with a spinal cord lesion at the C5-6 level, and he has had no feeling below the waist since. He has trouble walking because he cannot feel his legs, his condition has continued to deteriorate, and he is expected to need a wheelchair in the future.
Duitsman and his wife, Diana, sued Dr. Afzal and the practice in Black Hawk County District Court in December 2016. Their theory was that the steroid had been injected into an artery, forming a clot that caused a stroke of the spinal cord. They alleged two failures: that Dr. Afzal injected a particulate steroid without first using contrast dye under live imaging to confirm the needle was not in a blood vessel, and that he placed the needle incorrectly. The Duitsmans' experts testified that the lesion came from particulate steroid entering the radicular artery, which supplies the spinal cord. One of them, Dr. Fred Dery, testified that the needle went too deep, pierced the artery and sent at least part of the steroid into it. The defense called its own expert, Dr. Scott Glaser, who agreed on cross-examination that a needle in the wrong spot would be a serious mistake.
The case was tried before Judge David P. Odekirk, and the jury returned its verdict in late July 2019. It found Dr. Afzal negligent, found that the negligence caused harm to both Duitsmans, and awarded $7,360,000 in damages. The Duitsmans were represented by Pressley Henningsen, Farl Greene, Benjamin Long and Laura Schultes of RSH Legal in Cedar Rapids.
Dr. Afzal moved for a new trial. He argued that one negligence specification, the needle placement, lacked evidence, that part of the opinion testimony of Dr. Donald Lussky, one of the plaintiffs' experts, went beyond his written report, and that the plaintiffs' closing argument was improper. The trial court denied the motion.
The Iowa Court of Appeals affirmed on June 16, 2021. It found substantial evidence for the needle-placement specification, including Dr. Afzal's own acknowledgment that misplacing the needle would breach the standard of care. It held that Dr. Lussky's report had given fair notice of his opinions, and that the closing argument stayed within the latitude allowed to counsel and caused no prejudice. The verdict stood.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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