Harvey Thomas, M.D., a neurosurgeon in Prescott, Arizona, is being sued for civil battery by a former patient for putting in an implant without disclosing that he was taking money from Blackstone Medical Inc.
Civil Battery Alleged Involving Blackstone Payments
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John Sherman, the patient, claims that Thomas failed to tell Sherman that he had a deal with Blackstone before performing surgery on his neck and back.
Civil Battery
Findlaw.com states: “Battery is the intentional touching of, or application of force to, the body of another person in a harmful or offensive manner (and without consent)…. A battery is an intentional tort, as opposed to an act resulting from negligence. The elements to establish the tort of battery are the same as for criminal battery, excepting that criminal intent need not be present.”
This if the first time we’ve seen this tort claim used by a patient against their surgeon involving the failure to disclose financial ties to a manufacturer.
Alleged Kickbacks
According to an August 14, 2013 story in Courthouse News Service, “Between approximately 2000 and 2006 defendant Thomas was in a financial scheme with one or more of the Blackstone defendants where defendant Thomas received financial incentives to install Blackstone Medical devices, ” Sherman claims in the lawsuit. “During the relevant timeframe, defendant Thomas exclusively used Blackstone medical devices.”
The Justice Department announced a $30 million settlement in 2012 with Orthofix International, N.V. (which had purchased Blackstone), over allegations that Blackstone, before being acquired by Orthofix, paid surgeons to use their devices.
“These alleged kickbacks took a number of forms, including sham consulting agreements, sham royalty arrangements, sham research grants, travel and entertainment, ” the Department of Justice said in a statement in 2012.
Tainted Consent
Courthouse News reports that Sherman claims his surgeries constituted battery because he would not have had them if he’d known about Thomas’ deal with Blackstone. “Plaintiff would not have consented to a procedure such as the neck and back procedures performed by defendant Harvey Thomas, M.D. if informed that the surgeon had a financial incentive that impaired his ability to make a reasoned and proper medical decision, ” the complaint states.
“Defendant Harvey Thomas, M.D. committed battery when he performed a surgery while receiving financial incentives from the device’s manufacturer.”
Sherman also claims that Blackstone engaged in a civil conspiracy to commit battery. “Blackstone Medical Inc. enticed Dr. Thomas to use its equipment, exclusively, through a financial arrangement that impaired Dr. Thomas’s independent medical judgment, ” the lawsuit states.
Sherman is seeking punitive damages and costs from Thomas, Orthofix International and Orthofix Spinal Implants in Pima County Court.
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Discussion
This is a fascinating development. In my practice we've seen similar outcomes with the revised protocol. The key differentiator seems to be patient selection criteria. Has anyone else noticed the correlation with BMI thresholds?
Great point. I'd push back slightly on the conclusion, the sample size in the cited study is too small to draw population-level inferences. That said, the directional signal is compelling and worth a larger RCT.
We implemented a similar approach last year. Early results are promising but we're still gathering 12-month follow-up data. Happy to share our protocol if anyone is interested.
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