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Trees v. Ordonez

Supreme Court of Oregon

October 3, 2013

PEGGY N. TREES, Petitioner on Review,

Argued and submitted May 2, 2013

On review from the Court of Appeals[*] CC 060505489, CA A139893.

Rick Pope, Kirklin Thompson & Pope LLP, Portland, argued the cause and filed the briefs for petitioner on review. With him on the briefs was George Kirklin.

Larry Brisbee, Brisbee & Stockton LLC, Hillsboro, argued the cause for respondents on review. Michael T. Stone filed the brief for respondents on review.

Travis Eiva filed a brief for amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters, Linder, Landau, and Baldwin, Justices. [**]


In this medical malpractice case, we decide whether a plaintiff is required to present expert testimony from a medical doctor to establish the standard of care and breach of the standard of care. Plaintiff presented expert testimony from a biomechanical engineer familiar with use of the medical device installed on plaintiff's cervical spine by defendant, a neurosurgeon. For the reasons set out below, we conclude that plaintiff introduced sufficient evidence from an expert witness who is not a medical doctor to present a jury question on at least one aspect of her negligence claim.

Dr. Ordonez, a neurosurgeon, performed surgery on plaintiff that involved installing a plate made by Synthes ("Synthes plate") on plaintiff's cervical spine. Following the surgery, plaintiff's health deteriorated, and she ultimately sustained permanent injuries. Plaintiff brought this negligence action against Dr. Ordonez and Greater Portland Neurosurgical Center, P.C., alleging, among other things, that Dr. Ordonez had failed to properly place and secure the Synthes plate and its screws, resulting in damage to plaintiff's esophagus that led to other injuries.[1] At trial, plaintiff presented expert testimony from Dr. Tencer, a biomechanical engineer who is not a medical doctor, about the design, use, and installation of the Synthes plate; however, no medical doctor testified that defendant had breached the standard of care. At the close of plaintiff's evidence, the court granted defendant's motion for a directed verdict on the standard of care and breach because, although Dr. Tencer's testimony established the "ideal" placement of the Synthes plate, the court determined that defendant's conduct had to be compared to that of other neurosurgeons. The Court of Appeals affirmed, concluding that Dr. Tencer's testimony had "failed to bridge the gap * * * between the biomechanical construct of the plate and the methods with which they were intended to be installed and whether compliance with those same methods as a medical matter set the standard of care for [defendant.]" Trees v. Ordonez, 250 Or.App. 229, 238, 279 P.3d 337 (2012). We conclude that Dr. Tencer's testimony was sufficient for plaintiff to survive a motion for a directed verdict, and we reverse.


We begin with the facts relating to plaintiff's claim that the trial court erred in granting defendant a directed verdict on the issue of negligence.[2] We state the facts in the light most favorable to plaintiff, drawing every reasonable inference from the evidence in her favor. See Shockey v. City of Portland, 313 Or 414, 422-23, 837 P.2d 505 (1992), cert den, 507 U.S. 1017 (1993) (stating standard for viewing evidence after trial court's grant of a motion for a directed verdict for defendants).

Defendant performed an anterior cervical decompression and fusion on plaintiff. To perform that surgery, defendant retracted plaintiff's esophagus away from the anterior surface of her cervical spine and placed bone grafts between the cervical vertebrae. He then installed a Synthes plate on the anterior surface of plaintiff's cervical spine to provide stability.

The Synthes plate that defendant used is a titanium plate designed to provide stability to allow for cervical fusion. Synthes plates generally come from the manufacturer in a kit, which includes different-sized plates, a tool to bend the plate to the curvature of the patient's spine, and screws to secure the plate to the spine. To install the plate, the surgeon inserts a set of two screws into each of the six holes in the plate. The surgeon first inserts a "bone screw" through each hole in the plate and into one of the vertebrae. The bone screws have a thread down the middle so that a "locking screw" can be inserted into the bone screw. After the surgeon has inserted the bone screws, he or she tightens the locking screws into the bone screws. As the surgeon tightens the locking screw, it forces the edges of the head of the bone screw apart so that they come into contact with the inner edges of the hole in the plate. The contact between the sharp edges of the bone screw and the inner edge of the hole locks the screws in place.

For plaintiff's surgery, defendant used the smallest available plate, and he secured the plate using the six sets of bone screws and locking screws. Following the surgery, plaintiff experienced pain, difficulty swallowing, and the sensation of a plate in her throat. Plaintiff had additional symptoms, including contamination of the surgical wound with oral bacteria and amylase, which indicated that plaintiff's esophagus may have been perforated. Over the course of the month following the initial surgery, plaintiff's symptoms worsened, and she underwent six additional surgeries, including a surgery to remove the screws, plate, and bone grafts, and replace them with a halo to stabilize her spine.[3] Although plaintiff's condition has improved since her final surgery, she continues to experience frequent pain, and she has limited mobility in her left arm. As a result, plaintiff can no longer perform her work as a dental hygienist.

Plaintiff brought this medical malpractice action against defendant. Her complaint, as amended, included eight specifications of negligence, as well as a general allegation of negligence. Among other things, plaintiff alleged that defendant was negligent because he had "failed to properly place and secure the Synthes plate and its upper screws to the anterior surface of the C4 [cervical disk four] vertebral body in the May 25 surgery, allowing the plate and/or its attachment screws to erode and/or perforate plaintiff's esophagus or hypopharynx." Plaintiff made a similar allegation of negligence regarding the plate's lower screws.

At trial, plaintiff presented expert testimony from Dr. Tencer, a biomechanical engineer who works as a professor in the Department of Orthopedic Surgery at the medical school at the University of Washington. Dr. Tencer has a Ph.D. in mechanical engineering and is not a medical doctor. He testified, however, that there is overlap between the two disciplines because biomechanical engineering involves "engineering devices for the human body, " and "surgeon[s] put[] in mechanical devices to hold bones together."

In his current position as a professor, Dr. Tencer lectures medical residents who are learning to become orthopedists on various topics, including "what types of things to watch out for" when using implants, and he guides some of those residents through research projects. He acts as a scientific reviewer for a variety of academic journals, including the journal Spine, and he has lectured to the National Association of Orthopedic Surgeons. In addition, he conducts his own research and has developed an implant system for spinal surgeries. Dr. Tencer testified that in the course of conducting research comparing the Synthes plate to other similar devices, he had watched and participated in the placement of a Synthes plate on a cadaver, but had not participated in such a surgery involving a living person. Earlier in his career, Dr. Tencer had worked on a daily basis with medical doctors, including neurosurgeons, in a trauma center, but he did not testify that he had watched or participated in installation of Synthes plates in living patients during that time. Outside the research and patient care context, Dr. Tencer testified that he also had experience with Synthes devices because he had done biomechanical testing of some of those devices as part of the FDA approval process, and he had helped Synthes come up with ways to improve their products.

Dr. Tencer testified about the design of the Synthes plate. He testified that the screw design, with the bone screws and locking screws, "is a very critical design that's now found in some form or another in all of these types of plates to make sure the screws stay in." He explained that the screws are designed to sit below the surface of the plate because a partially seated screw has "no mechanical function." That is, the screws are designed with sharp edges that must press against the inner edges of the plate's holes to create a mechanical lock. If the screws are elevated partially above the hole, the edges of the screws will be distorted and will not lock properly.

Dr. Tencer explained some of the design features that Synthes had implemented to prevent soft tissue erosion related to use of the plate. Those features included the plate's rounded edges and polished surface, the thinness of the plate, and screws that sit below the surface of the plate. He explained that those design features "are essentially uniform throughout orthopedic implant design" and are "commonplace."

Dr. Tencer also testified about his biomechanical assessment of defendant's placement of the plate on plaintiff's cervical spine, and he identified two related concerns. His first concern was that, unlike a correctly installed plate, the plate had not been bent to follow the curvature of plaintiff's spine. As a result, the plate was not close enough to the cervical spine to allow the screws to be fully seated in the plate. His second concern was that some of the screw heads protruded above the plate.

Dr. Tencer focused on the second concern, testifying that the plate that defendant had selected was the incorrect size. The plate was too short, and, as a result, the screws used to secure the plate were "over angled, " and five of the six screws did not sit flush with the plate. Dr. Tencer went on to state that "it's very well defined as a step that the screw head must sit underneath down below the plates so it doesn't present any sharp edges" because "obviously [sharp edges] can lead to damage to the tissue." Specifically, he noted that a protruding screw head could come into contact with the esophagus. Given that risk, Dr. Tencer testified that, because there were screws protruding above the plate used on plaintiff, "it's pretty clear it's a go/no-go situation. In other words, any protrusion above the plate is essentially no-go, because it's clear that it can cause damage of some type, and it's very well described in all the literature that there should be no protrusion." Dr. Tencer further emphasized ...

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