Murphy v. Implicito

Murphy (plaintiff) injured his back while lifting a pallet at work, and his treating doctor referred him to an orthopedic surgeon, Dr. Dante Implicito (defendant). Dr. Implicito suggested surgery to remove pieces of bone from Murphy’s spine and replace them with bone grafts. Murphy alleged he only consented to the surgery on the condition that Dr. Implicito agreed he would not use cadaver bone, and that he would only use Murphy’s own bone (autograft bone). Murphy’s workers’-compensation carrier requested that Murphy seek a second opinion from orthopedic co-surgeon, Dr. George Jacobs (defendant). Murphy testified that he also told Dr. Jacobs that he did not want to use cadaver bone and that Dr. Jacobs agreed not to use it. Both doctors denied having conversations with Murphy about not using cadaver bone. On the day of surgery, Murphy signed a consent-to-surgery form that described the surgery as a “lumbar diskectomy and fusion with iliac crest bone graft + ‘steffe plates.’” Someone signed the consent-to-surgery form on the doctor’s line, but both doctors denied signing it. During the surgery, Dr. Implicito and Dr. Jacobs used cadaver bone as dowels for the bone graft. The grafted bone did not fuse, and Murphy remained disabled and in pain. Murphy’s workers’-compensation carrier then referred him to Dr. Steven Reich, an orthopedist. After Dr. Reich reviewed an X-ray of Murphy’s spine, he told Murphy that cadaver bone had been used during the surgery. Dr. Reich performed a second surgery and removed the cadaver bone used during the first surgery. After the second surgery, Murphy was still totally disabled and in pain. Murphy appealed.