IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH ) ) ) ) ) ) ) ) ) ) ) ) ) GENERAL JURISDICTION AND COMMON FACTUAL ALLEGATIONS

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1 Phillip C. Gilbert, OSB No. rd S.E. Avenue Suite A Gresham, Oregon 00-1 Phone: (0-00 Fax: (0-01 pgilbert@teleport.com IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH DAWN D. JOHNSON and SHANE E. JOHNSON, Husband and Wife, v. Plaintiffs, V. JAMES MAKKER, MD, FRANK J. McKOWNE, MD, and NORTHWEST PERMANENTE, P.C., an Oregon corporation, Defendants. Case No SECOND AMENDED COMPLAINT (Medical Negligence; Vicarious Liability; Loss of Consortium Damages Claimed: $,,. Not Subject to Arbitration Jury Trial Requested Plaintiffs allege: GENERAL JURISDICTION AND COMMON FACTUAL ALLEGATIONS 1. At all times relevant, the plaintiffs were husband and wife.. At all times relevant, defendant, V. James Makker, MD (hereinafter: Dr. Makker was a physician licensed under, and practicing medicine pursuant to the laws of the State of Oregon. Page 1 - SECOND AMENDED COMPLAINT S.E. AVENUE

2 . At all times relevant, Dr. Makker and his clinic held Dr. Makker out to the general public, including both plaintiffs, as having special expertise and training in the field of neurosurgery.. At all relevant times, Dr. Makker s principal place of business has been located in Multnomah County, Oregon.. At all times relevant, Northwest Permanente, P.C. was an Oregon corporation that regularly engaged in substantial business activity in Multnomah County.. At all times relevant, Northwest Permanente, P.C. contracted with Kaiser Foundation Health Plan of the Northwest ( Kaiser to provide Kaiser with physicians to provide health care to Kaiser members.. At all times relevant, defendant, Frank J. McKowne, MD (hereinafter: Dr. McKowne was a physician licensed to, and practicing medicine pursuant to the laws of the State of Oregon.. At all times relevant, Dr. McKowne was an employee of defendant, Northwest Permanente, P.C.. At all times relevant, Dr. McKowne, held himself out to the general public, including to plaintiff, Dawn D. Johnson (hereinafter: Mrs. Johnson specifically, as having specialized training in the field of radiology. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

3 . As to all of his acts and omissions alleged herein, Dr. McKowne was acting within the course and scope of his employment with Northwest Permanente, P.C.. At all times relevant, Mrs. Johnson was a member of Kaiser s health insurance program.. Beginning in or around November of 0, Mrs. Johnson developed pain and related symptoms in her low back.. In December of 0 and continuing thereafter, Mrs. Johnson sought evaluation of her low back and related complaints through her membership at Kaiser.. On August, 0, Dr. McKowne read MRI imaging of Mrs. Johnson s thoracic spine and generated a report setting forth his findings of the pathology in Mrs. Johnson s thoracic spine.. In his aforementioned report, Dr. McKowne stated that Mrs. Johnson had a large disc protrusion and other pathology at the T- level of her thoracic spine, which pathology was said to be indenting Mrs. Johnson s spinal cord.. The thoracic spine pathology that was indenting Mrs. Johnson s spinal cord was not, in fact, at the T- vertebral level as Dr. McKowne reported but instead was present at the T- vertebral level. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

4 . Mrs. Johnson saw Dr. Makker for the first time on December, 0, for consultation about her thoracic spine symptoms and pathology and possible surgery to address the same.. At the time of Mrs. Johnson s first visit to his clinic Dr. Makker personally reviewed the MRI study of Mrs. Johnson s thoracic spine that was performed at Kaiser.. At the time of Mrs. Johnson s first visit to his clinic Dr. Makker incorrectly concluded that the pathology that was indenting Mrs. Johnson s thoracic spine was located at the T- vertebral level.. During Mrs. Johnson s first visit to his clinic, Dr. Makker recommended to Mrs. Johnson that she authorize Dr. Makker to perform surgery on the T- level of her thoracic spine.. In reliance upon Dr. Makker s claimed skill and expertise in the field of neurosurgery, and his recommendations specific to her case, Mrs. Johnson authorized Dr. Makker to operate on the T- level of her thoracic spine.. On January, 0, Dr. Makker operated on Mrs. Johnson s thoracic spine (hereinafter: the first surgery.. Dr. Makker dictated, and later proofread, and then approved of an operative note for the first surgery. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

5 . In his operative note for the first surgery, Dr. Makker stated that when he operated on the T- vertebral level of Mrs. Johnson s spine he found a [D]isk herniation that was impinging severely on the spinal cord... but in fact there was no such herniation or spinal cord impingement at all at that level of Mrs. Johnson s spine.. During the first surgery, Dr. Makker removed a significant amount of the disc between the T and T vertebra in Mrs. Johnson s spine, and, also at those same vertebral levels, he performed a fusion procedure utilizing an interbody cage medical device.. Immediately following the completion of the first surgery, and as a direct and proximate result of Dr. Makker performing the first operation on the T- vertebral level of Mrs. Johnson s spine, Mrs. Johnson developed numbness in her pelvis, lower abdomen, right leg, and in her left foot; as well as urinary incontinence and multiple other symptoms that she had not experienced prior to Dr. Makker s performance of the first surgery.. On January, 0, Dr. Makker ordered an MRI study of Mrs. Johnson s thoracic spine, which study confirmed that she still had the exact same disc herniation at the T- level of her thoracic spine.. Late in the evening of January, 0, Dr. Makker again operated on Mrs. Johnson; this time at the T- level of her thoracic spine (hereinafter: the second surgery.. While performing the second surgery Dr. Makker removed only a relatively small portion of the disc that was herniated at the T- vertebral level. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

6 0. The second surgery did not result in any significant improvement in the symptoms that Mrs. Johnson developed as a direct and proximate result of Dr. Makker performing the first surgery; she continued to suffer from substantial weakness and loss of sensation and strength in her pelvis, lower abdomen and right leg; and had increased pain and weakness in her left leg, amongst other problems. 1. Following Dr. Makker s performance of the second surgery, and as directed by Dr. Makker, Mrs. Johnson participated in rehabilitation therapy. That therapy did not result in any significant improvement in the deficits and symptoms that Mrs. Johnson had following both the first and second surgeries, as described above.. On May, 0, another MRI of Mrs. Johnson s surgical spine was performed. That study revealed that Mrs. Johnson had a large disc herniation at the T- level of her thoracic spine, which is the same level of her spine that Dr. Makker operated on when he performed the second surgery.. On May, 0, Dr. Makker s physician partner, upon learning of the results of the MRI mentioned in the preceding paragraph, referred Mrs. Johnson to spine surgeons at Oregon Health Sciences University Hospital ( OHSU, on an urgent basis.. On May, 0, a team of surgeons at OHSU performed a third operation on Mrs. Johnson s thoracic spine ( the third surgery for the purpose of removing the herniated disc material at the same T- level that Dr. Makker operated on when performing the second surgery. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

7 . Following the third surgery, and as a direct and proximate result of the performance of that procedure, Mrs. Johnson developed a temporary gastric ileus and also developed a temporarily irregular heartbeat and also she developed a partial right pneumothorax.. Following the third surgery, and after engaging in substantial rehabilitation therapy, Mrs. Johnson experienced improvement in, but not a resolution of the symptoms and problems that she developed as a direct and proximate result of the first surgery that Dr. Makker performed. Mrs. Johnson s First Claim for Relief: Medical Negligence Against Dr. V. James Makker, MD COUNT I: The First Surgery. Mrs. Johnson realleges and incorporates by this reference paragraphs 1 through, above, as though fully set forth herein.. Dr. Makker s treatment and evaluation of Mrs. Johnson leading up to, and including his performance of the first surgery fell below the standard of care applicable to physicians specializing in neurosurgery in this community in one or more of the following ways: a. In mis-reading the thoracic spine MRI performed by Kaiser and interpreted by Dr. McKowne, as indicating a herniation of the disc at the T- level of Mrs. Johnson s thoracic spine, when in fact that herniation was at the T- level; b. In operating on the T- level of Mrs. Johnson s spine in the first surgery when there was no pathology or problem at that level that required surgical intervention; Page - SECOND AMENDED COMPLAINT S.E. AVENUE

8 c. In removing tissue and structure from the T- level of Mrs. Johnson s thoracic spine during the first surgery despite the fact that there was no injured or compromised tissues at that level that required removal; d. In performing the first surgery utilizing a posterior surgical approach instead of using an anterior or transthoracic approach when the herniation of the disc was located on the anterior side of the disk, with the result that operating using an posterior approach led to an inability to fully visualize or otherwise appreciate the fact that there was no herniation of the disc at that level of Mrs. Johnson s spine;. All of Dr. Makker s aforesaid negligent acts and omissions occurred within Multnomah County. 0. Mrs. Johnson did not discover Dr. Makker s negligent reading of the August, 0 thoracic spine MRI study done at Kaiser until January, The fact that Mrs. Johnson did not discover Dr. Makker s negligence in reading the aforesaid thoracic spine MRI scan was reasonable under the circumstances.. As a direct, proximate and reasonably foreseeable result of Dr. Makker s negligence, as alleged above, Mrs. Johnson sustained: A. Brown-Sequard Syndrome; B. Loss of sensation, control and strength in her entire right leg, including a resultant temporary need to ambulate by way of a wheelchair, walker and/or cane; C. A material, temporary worsening of the pain and numbness that she had been suffering before the first surgery was performed; Page - SECOND AMENDED COMPLAINT S.E. AVENUE

9 D. The unnecessary removal of healthy tissues in and around her T- disc space and her hip; E. Permanent urinary incontinence; F. Permanent incontinence of bowel; G. A permanently compromised ability to engage in intimate relations; H. Depression; I. Temporary anxiety; J. The need to participate in years of rehabilitation and exercise therapy, past, present and future; K. Permanently decreased range of motion and structural strength in her spine resulting from the unnecessary first surgery; L. A permanent materially increased risk of additional spinal injury resulting from having two fusion surgeries at two, adjacent vertebral disc levels; M. The need for additional surgeries that she would not have required had the first surgery been performed consistent with the applicable standard of care, including temporary complications following the third surgery including a gastric ileus, an irregular heartbeat, and a partial pneumothorax; N. Chronic pain up and down her right leg and in her lower abdomen and pelvis; O. Temporary numbness and loss of sensation in her left foot; P. Numbness and loss of sensation in her lower abdomen and pelvis.. As compensation for her past, present and future pain and suffering, Mrs. Johnson should be awarded noneconomic damages in an amount to be determined by a jury, not to exceed $,000,000. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

10 . As a further direct, proximate and reasonably foreseeable result of Dr. Makker s negligence, as alleged above, Mrs. Johnson has been required to incur medical treatment costs totaling $,. in amount. Mrs. Johnson should also be awarded economic damages in that amount.. As a further direct, proximate and reasonably foreseeable result of Dr. Makker s negligence, as alleged above, Mrs. Johnson will require additional medical care and therapy costs in the future at a total cost to her of $0, Mrs. Johnson should also be awarded economic damages in this amount. COUNT II: The Second Surgery. Mrs. Johnson realleges and incorporates by this reference paragraphs 1 through, above, as though fully set forth herein.. Dr. Makker s treatment and evaluation of Mrs. Johnson at all times subsequent to his performance of the first surgery fell below the standard of care applicable to physicians specializing in neurosurgery in this community in one or more of the following ways: a. In performing the second surgery utilizing a posterior surgical approach instead of using an anterior or transthoracic approach when the herniation of the disc was located on the anterior side of the disk, with the result that operating using an posterior approach led to an inability to fully visualize or otherwise appreciate the specific location of the herniation so as to be able to successfully remove it; b. In failing to remove all, or the substantially all of the herniated disc material; c. In failing to promptly order a post-operative MRI scan of Mrs. Johnson s thoracic spine in light of her lack of objective and subjective improvement following the second Page - SECOND AMENDED COMPLAINT S.E. AVENUE

11 surgery.. As a direct, proximate and reasonably foreseeable result of Dr. Makker s negligence, as alleged above, Mrs. Johnson sustained: A. A material, temporary worsening of the pain and numbness that she had been suffering before the first surgery was performed; B. The unnecessary removal of healthy disc in her T- disc space; C. Temporary depression; D. Temporary anxiety; E. A permanent materially increased risk of additional spinal surgery resulting from having two fusion surgeries at three, adjacent vertebral disc levels; F. The need for additional surgery that she would not have required had the second surgery been performed consistent with the applicable standard of care, including temporary complications following the third surgery including a gastric ileus, an irregular heartbeat, and a partial pneumothorax.. As compensation for her past, present and future pain and suffering, Mrs. Johnson should be awarded noneconomic damages in an amount to be determined by a jury, not to exceed $,000, As a further direct, proximate and reasonably foreseeable result of Dr. Makker s negligence, as alleged above, Mrs. Johnson has been required to incur medical treatment costs totaling $,. in amount. Mrs. Johnson should also be awarded economic damages in that amount. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

12 1. As a further direct, proximate and reasonably foreseeable result of Dr. Makker s negligence, as alleged above, Mrs. Johnson will require additional medical care and therapy costs in the future at a total cost to her of $0,000. Mrs. Johnson should also be awarded economic damages in this amount. Mrs. Johnson s Second Claim for Relief: Medical Negligence Against Dr. Frank J. McKowne, MD. Mrs. Johnson realleges and incorporates by this reference paragraphs 1 through, above, as though fully set forth herein.. The care that Dr. McKowne provided to Mrs. Johnson fell below the standard of care applicable to physicians specializing in radiology in this community in one or more of the following ways: a. In erroneously reviewing the August, 0 MRI study of Mrs. Johnson s thoracic spine as showing a herniation of the disc at the T- level when in fact the herniation was instead at the T- level; b. In generating a written report for the August, 0 MRI study of Mrs. Johnson s thoracic spine that stated that she had a herniation of the disc at the T- level when in fact the herniation was instead at the T- level.. All of Dr. McKowne s aforesaid negligent acts and omissions occurred in Oregon. As a direct, proximate and reasonably foreseeable result of Dr. McKowne s. negligence, as alleged above, Mrs. Johnson sustained: A. Brown-Sequard Syndrome; Page - SECOND AMENDED COMPLAINT S.E. AVENUE

13 B. Loss of sensation, control and strength in her entire right leg, including a resultant temporary need to ambulate by way of a wheelchair, walker and/or cane; C. A material, temporary worsening of the pain and numbness that she had been suffering before the first surgery was performed; D. The unnecessary removal of healthy tissues in and around her T- disc space and her hip; E. Permanent urinary incontinence; F. Permanent incontinence of bowel; G. A permanently compromised ability to engage in intimate relations; H. Depression; I. Temporary anxiety; J. The need to participate in years of rehabilitation and exercise therapy, past, present and future; K. Permanently decreased range of motion and structural strength in her spine resulting from the unnecessary first surgery; L. A permanent materially increased risk of additional spinal injury resulting from having two fusion surgeries at two, adjacent vertebral disc levels; M. The need for additional surgeries that she would not have required had the first surgery been performed consistent with the applicable standard of care, including temporary complications following the third surgery including a gastric ileus, an irregular heartbeat, and a partial pneumothorax; N. Chronic pain up and down her right leg; O. Temporary numbness and loss of sensation in her left foot; P. Permanent numbness and loss of strength and sensation in her lower abdomen and pelvis. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

14 . As compensation for her past, present and future pain and suffering, Mrs. Johnson should be awarded noneconomic damages in an amount to be determined by a jury, not to exceed $,000,000.. As a further direct, proximate and reasonably foreseeable result of Dr. McKowne s negligence, as alleged above, Mrs. Johnson has been required to incur medical treatment costs totaling $,. in amount. Mrs. Johnson should also be awarded economic damages in that amount.. As a further direct, proximate and reasonably foreseeable result of Dr. McKowne s negligence, as alleged above, Mrs. Johnson will require additional medical care and therapy costs in the future at a total cost to her of $0, Mrs. Johnson should also be awarded economic damages in this amount. Mrs. Johnson s Third Claim for Relief: Vicarious Liability Against Defendant Northwest Permanente, P.C.. Mrs. Johnson realleges and incorporates by this reference paragraphs 1 through and paragraphs through, above, as though fully set forth herein. 0. Referring to all of his acts and omissions that are alleged above, Dr. McKowne was acting within the course and scope of his employment with Northwest Permanente, P.C. and therefore Northwest Permanente, P.C. is vicariously liable to Mrs. Johnson for her damages resulting from those negligent acts and omissions, pursuant to the doctrine of respondeat superior. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

15 1. At all times relevant to this case, Northwest Permanente, P.C. conducted substantial business operations in Multnomah County, on a sustained basis.. As a direct, proximate and reasonably foreseeable result of Dr. McKowne s negligence as alleged above, and Northwest Permanente, P.C. s vicarious liability to Mrs. Johnson therefore, Mrs. Johnson sustained: A. Brown-Sequard Syndrome; B. Loss of sensation, control and strength in her entire right leg, including a resultant temporary need to ambulate by way of a wheelchair, walker and/or cane; C. A material, temporary worsening of the pain and numbness that she had been suffering before the first surgery was performed; D. The unnecessary removal of healthy tissues in and around her T- disc space and her hip; E. Permanent urinary incontinence; F. Permanent incontinence of bowel; G. A permanently compromised ability to engage in intimate relations; H. Depression; I. Temporary anxiety; J. The need to participate in years of rehabilitation and exercise therapy, past, present and future; K. Permanently decreased range of motion and structural strength in her spine resulting from the unnecessary first surgery; L. A permanent materially increased risk of additional spinal injury resulting from having two fusion surgeries at two, adjacent vertebral disc levels; Page - SECOND AMENDED COMPLAINT S.E. AVENUE

16 M. The need for additional surgeries that she would not have required had the first surgery been performed consistent with the applicable standard of care, including temporary complications following the third surgery including a gastric ileus, an irregular heartbeat, and a partial pneumothorax; N. Chronic pain up and down her right leg; O. Permanent numbness and loss of strength and sensation in her lower abdomen and pelvis; P. Temporary left foot numbness.. As compensation for her past, present and future pain and suffering, Mrs. Johnson should be awarded noneconomic damages in an amount to be determined by a jury, not to exceed $,000,000.. As a further direct, proximate and reasonably foreseeable result of Dr. McKowne s negligence as alleged above, and Northwest Permanente, P.C. s vicarious liability to Mrs. Johnson therefore, Mrs. Johnson has been required to incur medical treatment costs totaling $,. in amount. Mrs. Johnson should also be awarded economic damages in that amount.. As a further direct, proximate and reasonably foreseeable result of Dr. McKowne s negligence, as alleged above, and Northwest Permanente, P.C. s vicarious liability therefore, Mrs. Johnson will require additional medical care and therapy costs in the future at a total cost to her of $0,000. Mrs. Johnson should also be awarded economic damages in this amount. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

17 Shane Johnson s First Claim for Relief: Loss of Consortium Against Dr. Makker Count I: The First Surgery Mr. Johnson realleges and incorporates by reference paragraphs 1 through and paragraphs through, above, as though fully set forth herein... As a direct, proximate and reasonably foreseeable result of Dr. Makker s negligent care of Mrs. Johnson, with reference to his evaluation and treatment of Mrs. Johnson through the conclusion of the first surgery, Mr. Johnson suffered a permanent loss in the quality of the relationship that he had with his wife. As compensation for this loss Mr. Johnson should be awarded noneconomic damages, in an amount to be determined by a jury; not to exceed $0,000. Count II: The Second Surgery. Mr. Johnson realleges and incorporates by reference paragraphs 1 through and paragraphs through 1, above, as though fully set forth herein.. As a direct, proximate and reasonably foreseeable result of Dr. Makker s negligent care of Mrs. Johnson, with reference to Dr. Makker s evaluation and treatment of her at all times following his completion of the of the first surgery, Mr. Johnson suffered a permanent loss in the quality of the relationship that he had with his wife. As compensation for this loss Mr. Johnson should be awarded noneconomic damages, in an amount to be determined by a jury; not to exceed $0,000. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

18 Shane Johnson s Second Claim for Relief: Loss of Consortium Against Dr. McKowne 0. Mr. Johnson realleges and incorporates by reference paragraphs 1 through and paragraphs through, above, as though fully set forth herein. As a direct, proximate and reasonably foreseeable result of Dr. McKowne s 1. negligent care of Mrs. Johnson, as alleged above, Mr. Johnson suffered a permanent loss in the quality of the relationship that he had with his wife. As compensation for this loss Mr. Johnson should be awarded noneconomic damages, in an amount to be determined by a jury; not to exceed $0,000. Shane Johnson s Third Claim for Relief: Loss of Consortium Against Defendant Northwest Permanente, P.C.. Mr. Johnson realleges and incorporates by reference paragraphs 1 through and paragraphs 0 through, above, as though fully set forth herein. As a direct, proximate and reasonably foreseeable result of Dr. McKowne s negligent care of Mrs. Johnson, which negligence Northwest Permanente, P.C. is vicariously liable for, all as alleged above, Mr. Johnson suffered a permanent loss in the quality of the relationship that he had with his wife. As compensation for this loss Mr. Johnson should be awarded noneconomic damages, in an amount to be determined by a jury; not to exceed $0,000.. Page - SECOND AMENDED COMPLAINT S.E. AVENUE

19 WHEREFORE, plaintiffs, and each of them, pray for entry of Judgments in their favor, and against the defendants, jointly and severally, as follows: Plaintiff, Dawn Johnson: $,000,000; 1. Noneconomic damages in an amount to be determined by a jury, not to exceed. Economic damages in the amount of $,.;. Her costs and disbursements incurred herein. Plaintiff Shane Johnson: $0,000; and 1. Noneconomic damages in an amount to be determined by a jury, not to exceed. His costs and disbursements incurred herein. th DATED this day of January,. Phillip C. Gilbert, OSB # Attorney for Plaintiffs Page - SECOND AMENDED COMPLAINT S.E. AVENUE