In a medical negligence case in Day County, South Dakota, we represented a victim of unnecessary multiple back surgeries. The victim had a non-operative compression fracture, but had the misfortune of being treated in the Avera St. Luke’s emergency room by Dr. Britt Borden, a neurosurgeon. Although the patient had a non-operative compression fracture, Dr. Borden told her that she needed back surgery. Comparing the films taken post-surgery to the operative notes, he put hooks and rods two levels off on each side of her back, and put them out on her ribs, not on her spine! The effect of being two levels off on the back created leverage at the compression fracture site, and broke her back over the next couple of weeks.

A number of the rulings in the litigation are particularly interesting. The hospital and doctors tried to keep the litigation out of the county where the victim lived, but the trial judge held tough on keeping the venue in Day County, South Dakota. The trial judge ruled that it was permissible to proceed with punitive damage discovery against Dr. Borden, after the preliminary evidence was presented to the court. The trial judge refused to let the defendants subject the victim to multiple defense medical exams, ruling such treatment of this victim was unnecessary.

Particularly important in these types of cases is access to the checkered past of the provider, like Dr. Borden. Both the doctor and the hospital went to great lengths to try and keep that information from the victim and the jury. The trial court ruled that the National Practitioner Data Bank information on Dr. Borden had to be produced, and that the information Dr. Borden provided to licensing agencies in other states had to be produced. The defendants attempted five separate appeals to the South Dakota Supreme Court to deter the victim or to suppress evidence. Each of the five efforts was denied by the Supreme Court.

The case ultimately settled prior to trial. Two South Dakota newspapers reported on this case. The Sioux Falls Argus Leader published “A Culture of Silence” on March 29, 2004, which you can read in PDF format here. Another article was published in the Aberdeen American News, on November 15, 2003, entitled “Waubay Couple Suing Doctors, Hospital” which you can read in PDF format here.