News

Jury delivers verdict in Rosner case

Dr. Michael J. Rosner speaks with his attorney, Scott Stevenson, during jury selection on Aug. 1.

By Bill Moss, Published: September 25, 2014

A jury on Thursday found that Dr. Michael J. Rosner was negligent in his treatment of Pamela Justus but delivered an award to plaintiff Billy Justus of just $1 and cleared Park Ridge Hospital and Adventist Health System of any wrongdoing in the medical malpractice case.

Over the course of six weeks, attorneys interrogated witnesses, argued legal points, reviewed slide shows of complex brain-stem and spinal cord surgery and drew sharply conflicting opinions from expert witnesses about whether the operations Rosner performed on Pam Justus were medically unwarranted and did more harm than good. Yet the jury spent only a little more than one day deliberating before delivering a verdict. But for the finding of negligence against the neurosurgeon, the trial ended in a clear victory for the defendants, which included Park Ridge, where Rosner has performed surgery since 1999, and its corporate parent, Orlando-based Adventist Health System. The lead plaintiff's attorney, Wade Byrd, had asked the jury to award $5.1 million to cover medical expenses and injuries to Pam Justus and to compensate Billy Justus and the couple's two children, Amanda and Jonathan Justus, for the wrongful death of Pam Justus.

"I didn't see it coming," Byrd said of the verdict.

The jury answered yes to the first question, "Was Pamela Justus injured by the negligence of the defendant, Michael J. Rosner, M.D.?" Then it answered no to nine more questions that covered the liability of the surgeon and the hospital. The plaintiff claimed that Rosner and the hospital conspired to attract patients like Pam Justus for unnecessary surgeries, that Rosner and the hospital committed fraud in its marketing and promotion of the surgeon and that Rosner and the hospital took advantage of "a position of trust and confidence to bring about the surgeries of Pamela Justus." The jury also answered no to the question of whether Rosner's surgeries, which took place in 2000 and 2001, had been a cause of Pam Justus's death, in 2012.

The jury awarded $512,162 to Pam Justus's estate for personal injury then subtracted all but $1 because of "Pamela Justus's unreasonable failure ... to avoid or minimize" her serious health problems, including severe diabetes and obesity. She was also a smoker, suffered from depression and took a medicine cabinet full of painkillers, factors that the defense team hammered home repeatedly during the six-week trial.

In a statement, Park Ridge Hospital said the verdict validates its commitment to quality care.

"Park Ridge Health respects and appreciates the jury’s verdict in this matter," the statement said. "We are heartened that this outcome affirms our long-standing commitment to rigorous quality standards and compassionate care for every patient who comes to us for help. We are grateful for the dedication of our physicians and staff, and for the ongoing support of our community."

Dr. Rosner said through a receptionist in his office that he could not comment because the case is not over, a possible reference to an appeal of the negligence verdict. Rosner's attorney, Scott Stevenson of Charlotte, could not be reached for comment.

Billy Justus and Wade Byrd talk outside the Courthouse on Aug. 1.The jury verdict did nothing to change Byrd's opinion that Rosner's surgeries are unsafe and medically unwarranted procedures.

"Rosner is a snake-oil salesman with a knife who preys on vulnerable, weak, desperate people and Park Ridge Hospital allows it to happen," he said. "A jury in Henderson County but for one lone brave soul condoned what they're doing."

Byrd had no other details about the "line soul" other than a note the jury forewoman sent to Judge Zoro Guice Jr. at one point saying the jury was stuck at 11-1.

The plaintiff's team has spent a large sum of money bringing to trial the first of 33 medical malpractice cases filed in Henderson County against Rosner and Park Ridge. Byrd, who is the attorney for the plaintiff in each of those cases, said he had not yet decided what his next course of action would be.

Michael Easley, the former governor who signed on as a member of the plaintiff's legal team, said he did not know the answer to that either.

"That's a decision he's going to have to make," Easley said. "All juries are different and all these cases are a little bit different."

Closing arguments

The attorneys made their final arguments Monday and Tuesday as the medical malpractice case came to an end after weeks of testimony, 177 exhibits and long days of fierce advocacy and legal warfare.

Billy and Pamela Justus sued the neurosurgeon in 2003, two years after surgeries that they contend left her immobilized and a few months after the North Carolina Medical Board suspended Rosner's license for what it said were unnecessary surgeries on eight patients, including Pam Justus. She died in 2012 at age 58.

Attorneys for Rosner, Park Ridge Hospital and its corporate parent, Adventist Health System, told jurors that the plaintiff's team had not met the legal standard of proving negligence by Rosner or the health care providers, nor had it shown that surgeries led to her death.

Brad Searson, the first of three plaintiff’s attorneys who would speak to the jury on Monday and Tuesday, recounted Rosner’s path to the small Fletcher hospital in 1999.

“He wanted to pursue his ideas that folks with chronic fatigue syndrome or the symptoms of chronic fatigue syndrome and fibromyalgia might actually benefit from extensive neurosurgical procedures — procedures which happened to be very profitable,” Searson said.

A highly skilled neurosurgeon and nationally known expert in treating brain trauma, Rosner became a tenured professor at UNC and then at the University of Alabama at Birmingham. “Things did not work out for Dr. Rosner” in Alabama after four patients sued him for what they said were unnecessary procedures, Searson said. “Those lawsuits were settled, we know that. Dr. Rosner was not able to keep his tenured position. He entered into a confidential or secret settlement,” agreeing to stop doing surgeries and never to seek employment at UAB again.

Moving to Charlotte, Rosner tried to win privileges at Carolinas Medical Center, the largest hospital network in the city.

“Once again, in Charlotte, things did not work out for Dr. Rosner,” Searson said. “Dr. Rosner’s experimental ideas and his reputation for performing extensive neurosurgical procedures on patients who didn’t need them were not accepted, were not wanted in Charlotte. Once again Dr. Rosner needed to move on.”

Rosner “decided to bring his ideas and his practices to Park Ridge Hospital and the people of Henderson County,” he said. “Adventist Health System and Park Ridge Hospital were more than willing to overlook their policies regarding patient safety, essentially to look the other way as the money started rolling in, and roll in it did.”

Pam Justus “got caught up in the AHS, Park Ridge Hospital and Dr. Rosner business,” he said. “Dr. Rosner told her … she would never have another headache.”

A surgery to make more room in her spinal column in June 2000 and a second procedure to relieve pressure at the base of the brain in February 2001 left her in greater pain and more disabled than ever, he said.

Neurosurgeons and neuroradiologists “have testified that those surgeries were failures,” Searson said. “She had to undergo two additional surgeries to make it possible for her to hold her head up.”

 

‘Greater weight of evidence’

Searson emphasized that the criminal court standard of “proof beyond a reasonable doubt” was not the standard that would guide the jury in this civil proceeding. Instead, the plaintiffs had to prove their case “by the greater weight of the evidence.”

“If you believe something based on the evidence, you’ve met our burden of proof,” he said. “I would submit some issues we’ve proven far beyond ‘the greater weight.’ But the legal standard is holding the scale — plaintiff on one side, defense on the other — if we tip the scales ever so slightly, we have met the ‘greater weight of the evidence’ burden of proof.”

Searson pressed the case that Rosner’s surgery were not warranted by the MRI evidence and her symptoms, recalling testimony from the plaintiff’s expert witnesses that she did not have a condition, called a Chiari malformation, that Rosner’s operations were meant to repair. Searson motioned toward a tall stack of medical records.

“How many times has a defense lawyer come over here and pointed to all of these notebooks and talked about the medical history of Pam Justus? I’ve lost count,” he told the jury. “I wish that Dr. Rosner had spent a fraction of the time looking at these records that his lawyers have. Had he done so, Pam would have never had those surgeries.”

He urged the jurors to some back with a verdict that holds Rosner and the hospital to account.

“You now have the duty to decide whether hospitals and huge corporations that own and manage hospitals can do business in Henderson County without following the rules that apply,” he said. “It is your duty to decide whether doctors who come to practice in Henderson County will be permitted to perform medically unnecessary surgeries on desperate patients like Pam Justus, whether doctors will be held accountable and responsible for the injuries that they cause and the harm that they cause.”

 

No ‘standard of infallibility’

Scott Stevenson, the lead attorney for Dr. Rosner, said that while the case is complicated, a fair reading of the law should guide the jury to rule in favor of the neurosurgeon. Under North Carolina law, the plaintiffs had a high bar to clear.

“They have to prove that Dr. Rosner was negligent — either bad judgment or being unreasonable — and prove that Pam Justus was injured and prove that the injury was caused by the negligence,” he said. The plaintiff has not proved, Stevenson said, that the surgeries were “a proximate cause” — “a natural and continuing sequence” that led to Pam Justus’s death.

He emphasized one sentence in the instructions that Judge Zoro J. Guice Jr. will read to the jury: “I instruct you that negligence is not to be presumed from the mere fact of injury.”

“The law understands that there is no such thing as a perfect operation,” Stevenson said. “People unfortunately die every single day following surgery, it’s the nature of the beast. Operations are not inherently in and of themselves without risk.”

He reminded the jurors that the defense has put on hours of testimony to show that Rosner adhered to the standards of care set out by health care regulations and law. Even if the jury finds that the neurosurgeon made a mistake, he went on, that would not by itself prove negligence.

“The law does not require of a health care provider absolutely accuracy, either in his practice or in his judgment,’” Stevenson said. “It does not hold him to a standard of infallibility. The law recognizes that although they’re well trained, and they’re mighty smart people, they’re human and they’re not infallible, and they’re not omnipotent.”

Rival ‘blackballed’ Rosner

Stevenson sought, too, to undercut the plaintiff’s most outspoken and powerful witnesses — warning the jury that they were not neutral arbiters of the facts.

A Charlotte neurosurgeon, Dom Coric, acknowledged that “I came here because I consider myself an advocate for Mrs. Justus.” Coric’s partner, Craig A. VanDerVeer, blocked Rosner from winning surgery privileges at Charlotte’s largest hospital network, Stevenson said.

“As chairman of the credentials committee he blackballed him,” he said. “And 15 years later he’s still trying to bury Mike Rosner. There’s personal animus there. You need to ask yourself again, Is that a fair referee?”

Finally, Stevenson exhorted the jury not to “split the baby” in an effort to give both sides something.

“Please don’t try to seek a ‘win-win,’ because any money damage, even 5 cents, looks this doctor in the eye — a doctor who tried to help a patient, who tried to help scores of patients, who is being accused of harming his patients for money. You’re looking him in the eye and saying, ‘You are negligent.’ Please don’t do that.”

Two schools of thought

Jacqueline Grant, an attorney for Park Ridge, said the hospital had met and even exceeded the requirements in law and health care governance for vetting and credentialing Rosner, that it had thoroughly probed “the red flags” that the plaintiffs had emphasized.

“It just goes page after page of standards the hospital has to meet, and you heard all the testimony from our witnesses that told you how extensive that process is,” she said. The hospital’s team “contacted one of the leading outspoken critics of Dr. Rosner.”

Hours of testimony from plaintiff’s witnesses suggesting that his surgeries were experimental, unnecessary and irresponsible, she said, is based on a fundamental disagreement among neurosurgeons about when to operate on conditions such as brain-stem compression and a narrow spinal column.

“It’s simply that they don’t agree with Dr. Rosner’s school of thought,” Grant said. “The hospital already knows about the two schools of thought, so what’s the purpose of getting an external neurosurgical review to tell the hospital what it already knows? … There is no problem with Dr. Rosner. It’s simply, you’re in one school of thought or the other. If you’re in the other, then you’re just going to disagree with the surgical procedures that Dr. Rosner performs.”

When the jury takes up the questions of fraud and conspiracy — whether Rosner, Park Ridge and Adventist Health System — it will find no evidence that the hospital or its corporate owner had any role in bringing Pam Justus to Dr. Rosner’s office 14 years ago.

“Adventist Health System is not a health care provider,” she said. “It’s a corporation down in Florida. It knows nothing about Mrs. Justus until it gets served with a lawsuit. Obviously it does not have a relationship of trust and confidence with Mrs. Justus. They don’t even know about Mrs. Justus.”

Nor was there a relationship between Park Ridge and Mrs. Justus.

“Dr. Rosner is a private physician,” she said. “When she comes into the hospital, she has the surgery, that is the extent of her contact with Park Ridge Hospital. The hospital didn’t know anything about Pam Justus going to Dr. Rosner. The first time Park Ridge Hospital knows anything about Mrs. Justus is when she comes in for the surgery…. So there’s nothing Park Ridge Hospital did to bring about her surgical procedures in this case.”

‘No other day in court’

Searson had exhorted the jurors on Monday to find in favor of the Justus family.

“The decision you reach will be the final decision,” Searson, the plaintiff’s co-counsel, told the jury. “There will be no other day in court for Billy Justus, for Pam Justus and her family. This is it. The decision you make will determine the amount of compensation and the only compensation that will ever be awarded to this family.”