Yeung v. Dickman
It may be modern day Phoenix, Arizona, but a bitter fight between two spine surgeons in the city feels more like an Old West gunfight. The outcome may provide important legal lessons for physicians who are contemplating filing a complaint against a colleague with their state’s medical board.
James Lester was suffering from back pain in 1998 and went to see Phoenix spine surgeon, Tony Yeung, M.D. Yeung determined that Lester had a bulging disc. After doing a discography, Yeung treated Lester with a procedure known as "thermal modulation" or “thermal annuloplasty” whereby a heating probe is inserted into the spinal disc space to heat the area’s ligaments.
Yeung told OTW on April 6 that his patient was the first with a stable mild spondylolisthesis treated under a St. Luke's [Phoenix hospital] IRB (Investigational Review Board) to test the Oratec temperature controlled probe. Yeung said Lester developed a 3/5 neuropraxia, but resolved his back pain. The probe was withdrawn from investigation because it was found that the temperature could not be controlled.
According to Arizona court documents, Lester suffered "permanent nerve damage [during the surgery] that resulted in numbness, weakness, and debilitating pain in his right leg and foot." Lester sued Yeung for malpractice in 2001. After a jury trial in September 2005, Lester received a $1.4 million award, which Yeung paid.
The physician who testified at Lester's trial as an expert witness was Curtis Dickman, M.D., a Phoenix neurosurgeon who operated on Lester after Yeung.
Dickman’s Formal Complaint
After the Lester trial, Dickman filed a formal complaint against Yeung with the Arizona Medical Board. William Jones, Dickman’s attorney, told OTW on April 4 that Arizona law mandates physicians to report what they consider improper actions by their peers.
In his complaint filed in December 2005, Dickman accused Yeung of "dangerous, inappropriate, negligent and reckless medical treatment." In Dickman's opinion, Yeung "is a danger to patients and to the public." He said "many" patients who were treated by Yeung had come to his office. He added that Yeung's treatment of Lester was the "most grossly negligent care" he had ever encountered.
The Board took no action because, according to court documents, the Board had already investigated the matter based on a previous similar complaint.
But this wasn't enough to placate Yeung. He didn’t like being called a danger to the public, wanted to clear his name and take on Dickman, who at Lester's trial had acknowledged "animosity" toward Yeung.
Yeung Sues Dickman
On September 13, 2006, Yeung sued Dickman alleging he was defamed in Dickman’s letter to the Board.
Dickman’s lawyer argued that Yeung couldn't sue because Dickman’s statements to the Board were substantially similar to his testimony at the Lester trial. He claimed that common law absolute privilege to communications made in judicial proceeding immunized him from civil liability. The trial judge agreed and summarily dismissed the suit without a trial.
Yeung was undeterred and wanted his day in court. So he appealed, and won.
Immunity: Absolute and Privileged
The Appeals Court said that a complaint to the Board was not covered by a common law absolute privilege or immunity, but that physicians had "qualified immunity" in making a report to the Board. The Court sent the case back to the lower court.
When the case went back before the trial judge, Dickman again argued that he is immune from liability because, according to his motion, "there is no evidence, let alone clear and convincing evidence, that he acted in bad faith or with actual malice."
Again, the court ruled in Dickman's favor. And again, Yeung is not willing to give up his quest to clear his name.
Jones, Dickman’s attorney, told OTW that it seems unfair to mandate physicians by law to file complaints, and then sue them. That’s why Arizona state law provides for “qualified” immunity from lawsuits.
Truth and Good Faith
Larry Cohen, Yeung’s attorney told OTW on April 7 that he agrees with Jones, but that immunity only exists if the complaint is based on truth and absent of actual malice. Cohen argues that when Dickman filed the complaint against Yeung, Dickman entertained doubts about his claims or knew, or should have known they were false.
Cohen says Yeung will file a new motion with the trial judge in early April to reverse her second decision to dismiss Yeung’s case and allow a jury to decide if Dickman’s statements to the Board were false and made with malice. Cohen says Yeung has offered ample evidence, including an email survey Dickman sent to 32 other spine surgeons asking about Yeung’s treatment of Lester. Dickman sent the emails after Yeung had a complaint filed against Dickman with AANS (American Association of Neurological Surgeons).
Yeung requested that the emails be disclosed as evidence of Dickman’s state of mind when filing his complaint to the Arizona Medical Board. But Dickman told the court that he had deleted the emails. He had promised anonymity to the email recipients. Yeung then asked the court to compel Dickman to turn over the hard drive that contained the deleted emails. The court agreed. However, Dickman notified the court that the hard drive had been destroyed.
Cohen says those emails could provide evidence that Dickman harbored doubts about his complaint to the Medical Board. So Yeung has asked those surgeons to contact him and share the contents of their communications with Dickman.
Beyond Yeung and Dickman
Yeung told OTW that this case is bigger than just him and is being played out in a larger context over the appropriateness of fusion surgery and the willingness of some surgeons to offer expert testimony at trial for personal gain.
As a recognized leader in the field of minimally invasive spine surgery, Yeung clearly didn’t like being called a danger to the public and believes he is fighting this case for all surgeon/scientists who chart new waters.
The Scientific Fight
According to Yeung, Dickman did not help Lester’s foot drop, which he says went from 3/5 to 0/5 after Dickman’s surgery. He says Dickman hid or missed co-morbidities and that X-rays showed no instability. “Dickman blamed all of his ill-advised fusion’s bad result on me, and in my opinion, did it maliciously to protect fusion and his poor results, ” said Yeung.
We requested an interview with Dr. Dickman. However, he declined the request through his attorney.
According to Dickman's original motion to dismiss Yeung’s suit, he testified at the Lester trial that Yeung’s decision to perform this procedure on Lester fell below the standard of care. He testified that thermal modulation does not treat spondylolisthesis, does not relieve nerve compression, and does not stabilize instability. He testified that “from a theoretical standpoint, this [procedure] doesn’t have a chance of helping this problem.”
The “Reasonable Physician” Affidavit
We won't settle the scientific argument of what constituted standard of care in 1998 in this article. But in an affidavit filed in December 2010, Hansen Yuan, M.D., a former President of NASS and SAS (North American Spine Society and the Spine Arthroplasty Society), stated, "it is clear from the records that Dr. Yeung was treating Mr. Lester for a bulging disk and mild lysthesis and degenerative disk disease. No reasonable physician in December 2005 could believe that Dr. Yeung's treatment was directed at relieving spinal stenosis or spondylolisthesis with instability. Dr. Yeung was treating the patient for a disk disruption with discogenic low back pain radiculitis."
He added that no reasonable physician could believe that the care provided by Yeung caused, "complete foot drop or severe reflex sympathetic dystrophy, or destroyed Mr. Lester's L5 nerve root."
In sum, Yuan said that no reasonable physician could believe Yeung's care was, "blatantly negligent, dangerous and inappropriate”...or any other of additional accusations in the complaint to the Arizona Medical Board.
Yeung and Dickman are well known and highly regarded physicians in their fields.
Curtis Dickman, M.D.
According to Dickman’s website, he is a New York native who came to Phoenix’s Barrow Neurological Institute (BNI) in 1985 as a resident, and has practiced neurosurgery at BNI since 1992 where he has served as Director of Spinal Research and Associate Chief of the Spine Section within the Division of Neurological Surgery.
He subspecializes in spinal surgery and performs comprehensive spinal surgery and has special interests in the treatment of tumors of the spine and spinal cord, spinal trauma, surgery of the upper cervical spine, endoscopic spinal surgery, herniated thoracic discs, spinal fixation and fusion, spinal deformity and instability, artificial disc replacement, and hyperhidrosis.
Dickman has authored six medical textbooks and over 175 scientific articles. He is on the editorial boards for several major spinal and neurosurgical journals. He has held executive leadership positions in several spine societies and has been the scientific program director for several major spine societies.
Tony Yeung, M.D.
Yeung has authored over 70 scientific publications on his minimally invasive techniques, and was named a "Health Care Hero" by the Phoenix Business Journal. Yeung served as the President of the Maricopa County Medical Society, The Arizona Orthopedic Society, The Western Orthopedic Society - AZ Chapter, and the Board of the Arizona Medical Association. He is currently the President of the World Congress of Minimally Invasive Spine Surgeons, and Executive Director of the Intradiscal Therapy Society.
At this point we don’t know how the trial judge will rule on Yeung’s motion to let a jury decide whether or not Dickman’s statements were true and made without malice. We do know there are important lessons to learn here by any physician considering filing a complaint against a colleague to their state’s medical boards.
Yeung’s attorney, Cohen said it best: “Make factual statements and make them in good faith.”