Cary Spivak | Milwaukee Journal Sentinel

Saying a prominent neurosurgeon botched his back surgery, leaving him unable to walk, and then lied to cover up the error, a Kenosha man is charging the physician with fraud and medical malpractice in a newly filed lawsuit.

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The fraud claim, if successful, would allow the patient, Kim Hamburg, 56, to bypass the $750,000 cap on non-economic damages that could be paid in a medical malpractice suit. In a fraud claim, punitive damages — that is an award issued as a punishment — of up to double the amount of compensatory damages can be awarded, said Eric Farnsworth, Hamburg's attorney.

Farnsworth said the compensatory award could be large because his client, who uses a wheelchair, has "future medical needs in the millions of dollars."

Several plaintiffs and defense lawyers said the fraud claim was an unusual legal strategy, though they saw merit in the argument.

"I've never seen that tried," Michael End, a veteran medical malpractice lawyer, said of the fraud claim.

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"I think they'll be in a tough legal battle," End said, explaining that the state statute dealing with medical malpractice does not include a fraud claim.

"I can't imagine the Medical College would just sit back and let fraud be claimed without challenging it," End said. "Some poor trial judge will have to wade through all of that and come up with a decision."

The Medical College of Wisconsin, Froedtert Hospital, surgeons Dennis Maiman and Hesham Soliman and the state's insurance fund for physicians are defendants in the suit filed in Kenosha County last week. The state fund has a surplus of more than $1 billion, meaning that is the amount that would be left over if every actual and anticipated malpractice claim was paid.

Only Maiman is charged with fraud in the civil action.

Botched back surgery

According to the lawsuit, in 2015 Hamburg saw Maiman, a respected neurosurgeon who was a professor at the college and chairman of Froedtert's neurosurgery department. Maiman's Medical College web page states he is a professor and "was Chairman of Neurosurgery from 2009-2015, stepping down to allow a research focus."

Hamburg, a factory worker, had hurt his back and an MRI taken at United Hospital in Kenosha found an intradural lesion on his lower back, the suit states. Maiman "told Hamburg he would be in a wheelchair if the mass was not immediately removed," the suit states.

Hamburg charged that Maiman misread the MRI and thought the mass was on a different spot on the spine that it actually was. Maiman and Soliman operated on the T12 level of the spine, instead of the L1 level, which is where the lesion was actually seen on the MRI, the suit says. Both vertebrae are on the middle to lower back.

Neither Maiman nor Soliman responded to a request for comment and representatives of the college and Froedtert declined to comment on the suit or to make any official available for an interview. Maiman is the co-author of the book "Surgery of the Lumbar Spine” and the Medical College web page notes he has contributed 28 chapters to medical books and 190 peer-reviewed journals.

'This horrendous result'

During the 2015 surgery at Froedtert, the suit says, the physicians dissected "Hamburg's healthy spinal tissue, taking multiple biopsies." The suit alleges that "postoperative imaging revealed Maiman and Soliman had operated at the wrong level and had not touched the original mass."

"Each one of these mistakes built on the others to have this horrendous result," Farnsworth said.

The allegations that the surgery was botched make up the heart of the malpractice claim against the medical providers. The events that followed surgery are the basis of the fraud claim against Maiman.

"Not telling him about operating on the wrong level (of the spine), scaring him with the fear of cancer," Farnsworth said. "That resulted in further trauma caused by the doctor."

The "concealment and misrepresentations" were "part of Maiman's plan or device to avoid liability," Farnsworth wrote in the suit.

Hamburg charges that Maiman "continued to conceal the fact that they operated at the wrong level" and said they needed to operate on him again to get the "rest of the mass." Maiman told Hamburg that the mass was likely malignant, the suit says.

"Hamburg interpreted Maiman's statements to mean he had a cancerous tumor and an emergency situation," the suit says.

Eight days after the August 2015 surgery, Hamburg was told by a second Froedtert physician "that the tissue removed was not a tumor or mass, but healthy spinal cord tissue," the suit says, adding Hamburg quickly canceled his second surgery.

Shortly afterward he was discharged from Froedtert "in a wheelchair with weakness and severe pain" in his legs, the suit says.

"It's really ironic in a horrific way," Farnsworth said, noting his client's claim that Maiman warned he would end up in a wheelchair if he didn't have the surgery.

Farnsworth said he successfully brought a fraud claim in a medical malpractice case he filed in Waukesha County in 2005.

In that case, the suit charged that the physician, David Haskell, made an error during a spine surgery but failed to disclose the mistake to the patient and suggested a second surgery, Farnsworth said.

"Dr. Haskell took off his white coat and started taking steps in furtherance of a scheme

to cover himself," Farnsworth said, describing the claims in the lawsuit.

After the circuit court allowed the fraud claim to remain in the suit, the case was settled for an undisclosed amount, Farnsworth said.

The Hamburg suit is the second controversy involving Maiman, Froedtert and the Medical College in recent years.

Three years ago the college paid $840,000 to settle a whistleblower suit involving bills for services provided by Maiman and a second physician, according to a statement by the Chicago law firms that initially filed the suit. The firms represented a third physician and the federal government later became the lead plaintiff in the case. The government often takes over whistleblower suits when it feels the civil case has merit and the government has been injured.

The whistleblower suit charged that the college submitted false claims to Medicare in neurosurgery cases. Medicare will pay for teaching physicians services only if the doctors are present for key parts of the surgery and remain available if needed, the attorney's statement explained.

But the suit charged that some neurosurgeons, including Maiman, "regularly scheduled simultaneous surgeries to be performed by one individual teaching physician without arranging for a back-up teaching physician."

The suit alleged this was done "for the plainly improper purpose of billing Medicare for more surgeries than the law would otherwise permit them to perform."

A spokesperson for the Medical College said in an email that the college felt it was in its "best interest to settle the case" in 2015 and that the settlement "did not constitute an admission of liability."

Seven defendants were named in the suit, including Froedtert and Maiman.

The Hamburg suit comes as fewer medical malpractice claims are filed in Wisconsin, largely because of the difficulty of winning the cases in court, where nine in 10 cases are won by the medical providers. In addition, the state's cap on non-economic damages limits the potential payday to lawyers who often spend well over $100,000 to bring a medical malpractice suit.

Plaintiff attorneys in medical malpractice cases generally pay the upfront costs of a case and receive a percentage of the winnings. They are not paid if they lose the case.