News

Rosner speaks at trial

By Bill Moss, Published: September 23, 2014

For the first time since time since the North Carolina Medical Board suspended his medical license, Dr. Michael Rosner spoke publicly and at length about his career, his surgeries and the controversy and lawsuits they have brought on.

He had to.
Rosner's defense team called the neurosurgeon, a physician vilified by his foes and beloved by patients who say he cured them of a lifetime of pain. He is standing trial in a civil lawsuit brought by Pamela Jane Justus, who underwent surgeries by Rosner in 2000 and 2001 and died in 2012. Billy Bruce Justus, her husband, is suing Rosner, Park Ridge Hospital and Adventist Health System for negligence, fraud and civil conspiracy, saying Rosner performed unnecessary procedures while the hospital and its corporate parent looked the other way for the sake of money.
The defense team has argued that Rosner is a skilled surgeon of international renown whose operations are warranted by neurological exams, patient symptoms and MRI scans, and that the hospital and AHS properly credentialed him and supervised his work.
"In the past four weeks," defense attorney Scott Stevenson began as Rosner took the stand for the first time, "the jury has learned a lot about Pamela Justus and Billy Justus, their family, their children, etc. Take a few minutes to familiarize the jury with Michael Rosner and where he came from."
It took more than a few minutes as Rosner, guided by Stevenson, summarized his life story.
Rosner described his father as smart and resourceful.
"His mom died when he was 6, his dad died when he was 16, in the middle of the Depression," he said. After graduating from high school as valedictorian, Rosner's father joined the Marines in 1937. He got out then re-enlisted just in time for Pearl Harbor, and fought in the Pacific. He married a female Marine he met in Chicago.
"So you're the son of two Marines?" Stevenson said.
Born in 1946, Rosner did well in school, attended the University of Virginia then the Medical College of Virginia in Richmond.
Asked how he came to choose medicine, Rosner said, "Well, I couldn't be a jet pilot." He was too nearsighted. As a youngster, he frequently visited the Smithsonian Institute. "I was particularly fond of the medical exhibits." By his senior in high school, he had set his sights on medicine.
He graduated from med school in three years instead of the usual four and embarked on his neurosurgery career. Rosner confirmed Stevenson's recall of an earlier witness's statement that "when you become a neurosurgical resident you give up your 20s and your 30s." He worked every other night and every other weekend in addition to daytime hours operating, making rounds, treating patients and covering the emergency room.
Recruited by a brain tumor specialist, Rosner moved from Richmond to the University of North Carolina. "Tired of fighting the bureaucracy" at UNC, Rosner's sponsor left for the University of Alabama at Birmingham and Rosner followed him. By 1988, Rosner was a full tenured professor at UAB.
It was at Birmingham that Rosner's surgeries led to an internal conflict with his department chief and the first of a series of malpractice lawsuits by patients who claimed that the surgeries were unnecessary.
He had become nationally known for his work in traumatic brain injury. Earlier in the trial, a defense witness had testified that "every neurosurgery resident in America knows Mike Rosner because of his work on brain injury and spinal cord injury."
"Dr. Rosner is one of the best known and most talented authorities on critical care in the specialty of neurosurgery in the United States," his UAB neurosurgery chief wrote. "He has made seminal contributions to our understanding of the pathophysiology of increased intracranial pressure in patients with head injury and has devised protocols for treatment of these patients that have become widely accepted ..."

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Moving on to the conflict that led to Rosner's eventual departure from Birmingham, Stevenson asked his client to comment on the source of infighting among surgeons.
"You've got a lot of smart people in a small environment with often limited resources," he said.
The plaintiff had asserted that "you were run out of UAB," Stevenson said. "Is there any truth whatsoever to that?"
"No there's not," he said.
Rosner said conflicts had arisen over how much time he spent with patients — he had determined that neurological examinations take at least one hour —over Rosner's attempts to change the culture of a department that needed updating and over recognition Rosner was winning.
Stevenson read from a letter Rosner's attorney had written during the conflict with the UAB neurosurgery chief. The attorney, Lee Martin, wrote that after talking with Rosner and making an "independent investigation" of the situation at UAB, he had "advised Dr. Rosner that he appeared to be the victim of professional jealousy and personal animosity by his division chief and by one of the other neurosurgeons in his division."
A key event in Rosner's surgeries cervical spine and brainstem surgeries occurred when he operated on a fellow physician who suffered from chronic fatigue syndrome. The doctor, Sam Banner, could work no more than an hour a day, reviewing workers comp claims. Rosner's surgery was a sensational success.
"Within six to eight weeks he opened his own private practice — that was probably 20 years ago now, and to this day he still works," Rosner testified.
Banner became something of an evangelist for Rosner, and was prominently featured praising his work in a "20-20" news show that aired after Rosner had moved to Fletcher.
The plaintiffs tried to show that Rosner's appearance on the news program was one part of a "civil conspiracy" by the neurologist, Park Ridge and Adventist Health System to promote Rosner's surgeries and attract patients with fibromyalgia and chronic fatigue syndrome symptoms. The show contained only 14 words from Rosner, Stevenson pointed out, suggesting it was hardly focused on Rosner.

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In his cross examination of Rosner, plaintiff's attorney Wade Byrd said the neurosurgeon's interviews informed the show's reporters, whether he was on air or not. "TV trucks came to Henderson County, came to Park Ridge Hospital, multiple trucks," Byrd said. "They followed you into the operating room, they showed you scrubbing, they showed you examining patients. True?"
"More or less," Rosner said. "I don't remember much of it."
"And Adventist Health System hired (public relations consultant) Rick Amme to come to Hendersonville to get you ready, correct?"
"That was the intent," he said.
He reminded Rosner of an email he had sent to Amme the day after the show thanking him for his coaching.
"The phones have not stopped," Rosner wrote.

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Stevenson said radiology images showed Pam Justus's spinal canal and spinal cord were smaller than the lower level of normal. Asked whether he operates on all patients with a smaller than average spinal canal and spinal cord, Rosner said no.
"The most important factor in deciding to operate is the degree of disability you're suffering," he said.
Recalling plaintiff's testimony that the surgery on Pam Justus didn't work, Stevenson asked: "Why doesn't everyone get better if you simply decompress the cord?"
"Permanent damage is probably the simplest answer," Rosner said.
How did he come to treat Pam Justus?
"You heard about Nancy Peace (Pam Justus's sister)," the surgeon said. "I was making rounds on her and she looked up at me and said 'I think my sister needs to see you.' I said 'OK. Have her call.'"
Rosner contended that his surgery on Peace was such a success that she continued her teaching career and never missed a day of work as a schoolteacher until she retired.
"She was doing spectacularly well," he said. "Any neurosurgeon who gets anybody back to work has had a raving success and she qualifies. Does that mean everything is 100 percent peachy keen? No."

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Stevenson also sought to rebut the plaintiff's evidence that Rosner was in effect recruiting fibromyalgia patients.
"Were you performing these operations," he asked, "to cure fibromyalgia or chronic fatigue syndrome?"
"No," Rosner replied.
Stevenson invited him to say what he thought of the two widely diagnosed fatigue and pain ailments.
"Intellectually, I accept the possibility that they may be real but I have my sincere doubts," he said.
Instead, the surgeon said, some of his patients have symptoms of fibromyalgia that are actually caused by abnormalities in the spine or brainstem that his surgery corrects. Through physical examination and radiology, he said, he can confirm that abnormalities exist.
"When you find that and where it leads you to the conclusion that there is pressure on the brainstem or the spinal cord or both, then those become surgical patients under any definition," Rosner said. "They don't necessarily have to have surgery but it becomes an option."

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Cross-examining Rosner, Byrd went on the attack over a curriculum vita the defense had submitted.
"We've got your CV and it's dated '09," he said. "Are you still a member of all these societies you list on there?"
He is no longer board-certified, Rosner acknowledged, because the American Association of Neurological Surgeons requires an unrestricted medical license.
"And you have not had an unrestricted medical license in the state of North Carolina since November of 2002, isn't that correct?"
"That's correct," Rosner said.
Displaying records from the North Carolina Medical Board, Byrd forced Rosner to admit that the board had summarily suspended his license in an emergency order, in November 2002, and had lifted it again, in February 2009, after a finding that he had performed unnecessary surgery on eight patients.
Another witness, the chief of neurosurgery at the University of South Florida, called Rosner's surgeries "unconscionable" while a prominent surgeon from Charlotte testified that his surgery was "an anathema. I think the Webster dictionary version of it would be something that is unacceptable, morally repugnant. Did you hear that?"
"I heard that," Rosner said.
"Did you hear him say neurosurgery is the last refuge of the scoundrel," Byrd said, pressing the attack.
Rosner said he thought that was patriotism.
"Do you know that downstairs in the clerk's office there are 32 other lawsuits pending against you for unnecessary surgery? You know that, don't you?"
"Yes I do," Rosner said.
Byrd's law firm also represents the other 32 plaintiffs.