Neurosurgeon ordered to pay ₩140 million for failing to anticipate patient movement during spinal procedure

A neurosurgeon who was sued for 400 million won ($274,330) for damages after he botched a procedure for a herniated disc that left a patient paralyzed has been ordered to pay part of the demand for compensation.

The Seoul Eastern District Court recently ruled in part in favor of the patient in damages claim against the neurosurgeon, ordering the latter to pay 142 million won plus delayed interest.

In March 2021, the patient underwent a left and right radiofrequency nucleoplasty procedure over two days to treat a herniated disc in the second and third lumbar intervertebral discs. However, shortly after the procedure, he developed right lower extremity paralysis and had to undergo a lumbar laminectomy at another hospital.

During the trial, the patient’s physical examination revealed a generalized decrease in muscle strength from his right pelvis to his toes.

The patients claimed that the neurosurgeon, the director of a neurosurgery center, was negligent and demanded 397 million won in damages, including 20 million in alimony, plus prejudgment interest. The patient claimed that she suffered from paralysis due to a botched nucleoplasty and that she should have opted for a laminectomy instead of a nucleoplasty in the first place.

The court held that the neurosurgeon failed to fulfill his duty of care and explanation. It accepted the medical records assessment that the patient's paralysis was most likely caused by the secondary procedure (nucleoplasty). It said there was “no evidence that the risk of thermal damage and paralysis of the lower limbs was explained to the patient” before the procedure.

During the trial, the neurosurgeon argued that “the patient already had a herniated disc and spinal stenosis, and during the secondary procedure in question, the patient moved suddenly. It is difficult for a doctor to anticipate or control (sudden patient movement).”

However, the tribunal rejected this argument.

The tribunal concluded that the doctor should have fully anticipated and prepared for the possibility that the patient might move to some extent during the procedure. It added that there is no evidence that the patient moved so much as to interfere with the procedure. There is no evidence to suggest that the patient’s right lower limb paralysis was caused by a pre-existing herniated disc or spinal stenosis.

However, the court acknowledged that it was not negligent for the neurosurgeon to choose a laminectomy over a nucleoplasty.

It said there are various treatments for herniated discs, and there are examples of patients being cured by nucleoplasty even if their condition is severe. “So, it is difficult to say that the neurosurgeon was negligent in exercising his discretion in choosing the treatment method,” it said.

As the patient's disability was temporary and not permanent, the neurosurgeon was not required to pay all wages lost. The physical examinations conducted two years apart showed that his right lower extremity paralysis was fixed, and no further treatment was required, so the doctor was not liable for future medical expenses, it added.

Accordingly, the court ordered the doctor to pay the patient 142.3 million won in damages, including 10 million won in alimony for breach of the duty of explanation, plus delayed interest.