News

Attorneys present arguments in Rosner case

Former Gov. Mike Easley speaks with defense attorney Scott Stevenson.

By Bill Moss, Published: August 15, 2014

Lawyers for plaintiff Billy Justus said on Monday they would prove that Dr. Michael Rosner engaged in a "civil conspiracy" when he performed unnecessary surgery on Pamela Justus in 2000 while defense attorneys countered that they would show that the neurosurgeon acted responsibly and adhered to professional standards.

The medical malpractice case of Justus v. Rosner started much the same as its 11-year history might suggest — with lawyering over depositions and procedures and a 32-minute delay caused by the tardiness of Juror No. 5.
Featuring a former North Carolina governor and a former Miss North Carolina on the plaintiff's side and a small platoon of respected medical malpractice attorneys on the defense side, the trial is expected to last up to six weeks. It could result in a malpractice verdict and award of punitive damages against Rosner, Park Ridge Hospital and Adventist Health System or a vindication of surgeries that Rosner's attorneys argue is pioneering and largely effective for hard-to-treat patients who have for years endured pain.
Opening arguments revealed the wide chasm between the two sides.
Wade Byrd, the lead plaintiff's lawyer, took the jury on a step-by-step history of Dr. Rosner's association with Park Ridge and Pam Justus's experience with the surgeon.
The hospital "must investigate a surgeon's background before allowing a surgeon to operate in their facility," he said. "If they do not, and a patient is harmed, the hospital is responsible. When a hospital knows surgery is being performed for reasons not accepted by surgeons generally, it must carefully monitor and supervise that surgeon by those with appropriate expertise. And when treatment is offered to patients which constitutes experimentation on human subjects, a hospital must have safeguards to protect the safety of the patient. If the hospital fails to do so and the patient is harmed, the hospital is responsible."
Byrd inserted a fact that could become critical later. He said Adventist Health has revenue of $5 billion to $7 billion a year. He and Easley tried to tie Rosner's original employment and later the promotion of his unorthodox surgeries to Orlando-based Adventist, which operates 44 hospitals nationwide.
"Dr. Rosner tells Mr. Gentry that he has an impressive but tumultuous past," Byrd said, describing the surgeon's first job interview at the Fletcher hospital, in 1999.
An honors graduate of the University of Virginia and graduate of the Medical of College of Virginia, Rosner had been a professor at UNC and the University of Alabama at Birmingham. He left Alabama amid a controversy over surgeries there, landed in Charlotte for a while and then applied at Park Ridge. The hospital granted him privileges and he resumed the surgeries that had brought him fame and condemnation.
"During that period of time — year 2000, 2001 and 2002 — Dr. Rosner accounted for 30 to 33 percent of the hospital's net revenue. A hundred and fifty positions on staff — one man, 33 percent," Byrd said.
Later, in his opening statement, Park Ridge attorney Phillip Jackson said the defense would prove that Byrd's assertion on Rosner's net revenue was false.
Byrd depicted Rosner as a relentless and persuasive recruiter of new patients.
Pam Justus, who died two years ago, said in a testimony videotaped in April of 2012 that she first called Rosner's office after the surgeon told her sister that his surgery could cure Pam's chronic migraines.
"I was tickled to death somebody was going to find out why I was having these headaches," she said.
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In his opening arguments, Mike Easley attempted to show the link between Adventist Health and Rosner.
When the "20-20" news program was reporting a story on the doctor, the corporate office hired public relations manager Rick Amme, Easley said.
"'You help him prepare for "20-20." We want this to come out well,'" he said of the direction from headquarters. "So now they're promoting and they're advertising this surgery. Dr. Tim Johnson comes out and he says, 'This needs to be studied. This is not ready for prime time' and then on the morning show, he issues the statement that it is still experimental. And yet when the show airs, Dr. Rosner sends an email to Mr. Abbe saying, 'It was great. Everything was great. The phones have not stopped ringing.'
"They are in the business together. They are in a civil conspiracy. At that point, the hospital puts up a website, and the website says if you've got fibromyalgia, and you've got chronic fatigue syndrome, you need to come here because we've got Dr. Rosner, and he has a surgery that can cure 10 million people — traditional surgery not used on traditional patients."
The organization's promotion of Rosner and his surgeries continued despite statements by the national associations of rheumatologists and neurosurgeons that "this is experimental. Don't do it."
"AHS has plenty of neurosurgeons. It has plenty of rheumatologists. They get this information. They know it. Everybody knows what's happening here. Things might be done with a wink and nod but they're being done in concert. ... AHS is still promoting Dr. Rosner. And then the Medical Board issues its summary suspension."
Easley's portrait of Pam Justus was sympathetic.
"We will prove to you that Pam Justus was a wonderful lady. She and Billy took in foster children. They adopted two children — Amanda and John. She's the kind of lady this country needs more of, not fewer. She didn't deserve this. She didn't need this. It was unnecessary surgery — needless, useless, painful, damaging, and then she had to endure two more horrific surgeries to undo the damage that AHS and Dr. Rosner did to her."
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Pam Justus may have been a kind and loving person, countered defense attorney Lisa Hoffman, but she was no model of health-minded self-control.
To link her death in 2012 to surgery Rosner performed 11 years earlier is to ignore years of serious medical problems 20 years before that surgery and for a decade after.
The defense, she said, will detail Pam Justus's continuing health problems — "uncontrolled diabetes, blood sugars in the 3-and-400s. She continued to smoke heavily. She was hospitalized for pneumonia and COPD and she was still continuing to smoke."
"She has been experiencing these symptoms for 20 years" when she called Rosner, Hoffman said, "and these experts have no clue about the agony and desperation that she went through, all of the conservative treatments that she tried, before she came to Dr. Rosner. They know nothing about the 18 different physicians she saw in 12 different specialties for these problems that was experiencing over these 20 years. These experts are also going to tell you that they don't know what was causing these symptoms that Mrs. Justus was experiencing."
The defense attorneys tried and failed during pretrial litigation to bar the plaintiff from putting on evidence — or even mentioning — Rosner's two license suspensions by the Medical Board cases. But the defense lawyers are assiduous in portraying those cases as separate and non-guiding.
"The Medical Board does not determine the standard of care in a civil case," Hoffman said. "That is something that you as jurors are going to be asked to determine."
Defense experts, she said, "will tell you that both surgeries were not medically unnecessary, and that Dr. Rosner acted reasonably, diligently, responsibly and complied with the standard of care. They're going to tell you that even if she never had the surgeries, she still would have had the same unfortunate outcome."
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If they agreed with nothing else, the whole courtroom likely would have to concede Jackson's metaphor for the trial — a slow muddy river.
For his literary reference, Jackson, a Hendersonville native, chose "From the Banks of the Ocklawaha," the Henderson County book of history and lore named for a purported Cherokee name translation of Mud Creek.
If Jackson tried to link Rosner to Adventist, Jackson was all about untying the knot.
"The decisions about medical staff credentialing are made locally, in this county, by the doctors who work on the committees at that hospital," he said. "There is no conspiracy between Park Ridge Hospital and Dr. Rosner, between Adventist Health Care and Dr. Rosner. You're not going to hear credible evidence from this chair that that is in fact the case."
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The most dramatic testimony came from Pam Justus, who answered attorneys' questions about her health saga.
In apparent pain, her voice ravaged by a paralyzed left vocal chord, Justus told the attorneys about how she first went to Dr. Rosner. She has not been able to hold her head up since Rosner performed the first of two procedures on her in June 2000, her lawyer says.
Reading from Rosner's office notes on her case, Byrd asked Justus about a series of symptoms the notes indicated she had when she first visited his office. Several of those — ringing in her ears, trouble balancing, numbness in her tongue — were problems she had never had, she said.
After her second Rosner surgery, in February 2001, Justus spent years trying to get help from neurosurgeons at Wake Forest, Duke, Atlanta and Charlotte. A doctor in Charlotte told her an MRI showed, "You have (an) absolute perfect spinal column. He said in my opinion, this is what I call malpractice. He said I just want you to know, I don't think you should see this doctor."
As he ended his part of the deposition, Byrd asked Justus whether she knew why she was there.
"The reason I'm here," she said, is "I don't want anybody else to have to live one day in my life, from being an outgoing, loving mother, husband, friend, sister, brother. I've had the pain for so long and it doesn't go away, but the reason I'm here is what was said to me."
Her husband Billy "had every responsibility, he bathes me, he dresses me, he's gotten to be a pretty good cook," she said. "Most of all, we've been married 41 years and he's still the loving husband that I wish anybody in the world could have."