Surgeon blamed for plaintiff's renal failure. Defense verdict. Orange County.


Spinal surgeon orders antibiotics that are alleged to have caused kidney failure.

The Case

  • Case Name: Ben Whittington and Cheryl Whittington v. Robert J. Jackson, M.D.
  • Court and Case Number: Orange County Superior Court / 30-2019-01052108
  • Date of Verdict or Judgment: Tuesday, February 20, 2024
  • Date Action was Filed: Thursday, February 14, 2019
  • Type of Case: Loss of Consortium, Medical Malpractice
  • Judge or Arbitrator(s): Hon. Thomas McConville
  • Plaintiffs:
    Ben Whittington and Cheryl Whittington
  • Defendants:
    Robert Jackson, M.D. (prior co-defendant, Mission Hospital, dismissed on 4/6/20 by MSJ.)
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: Defense verdict
  • Trial or Arbitration Time: 11 days
  • Jury Deliberation Time: Less than 1 hour.
  • Jury Polls: 12-0 in favor of defendant, Dr. Robert Jackson on the issue of negligence.

The Attorneys

  • Attorney for the Plaintiff:

    Hodes Milman, LLP by John D. Schumacher and Lee Weiss, Irvine.

  • Attorney for the Defendant:

    Doyle Schafer McMahon, LLP by Terrence J. Schafer, Irvine. 

The Experts

  • Plaintiff’s Medical Expert(s):

    Tony Feuerman, M.D., spine surgery.

    Jonathan Tolins, M.D., nephrology.

    Michael Fitzgibbons, M.D., infectious disease.

    Kelly Nasser, R.N., life care planning.

  • Defendant's Medical Expert(s):

    Nitin Bhatia, M.D., spine surgery.

    Eric Wechsler, M.D., nephrology.

    Howard Pitchon, M.D., infectious disease.

    Jonathan Zuckerman, M.D., renal pathology..

    Melissa Keddington, R.N., life care planning.

  • Plaintiff's Technical Expert(s):

    Catherine Graves, economics.

  • Defendant's Technical Expert(s):

    Heather Xitco, economics.

Facts and Background

  • Facts and Background:

    Plaintiff Ben Whittington first presented in the office of neurosurgeon, Dr. Robert J. Jackson, on September 20, 2017 with signs and symptoms of cervical myelopathy. His medical history at that time was significant for diabetes, hypertension, chronic anemia and chronic kidney disease (Stage 3a). Dr. Jackson recommended surgical intervention in both the anterior and posterior cervical spine, and that procedure was scheduled to take place on November 21, 2017.

    In anticipation of surgery, pre-operative labs on October 30, 2017 showed a creatinine of 1.41 and an eGFR of 50, reflecting the patient’s Stage 3a chronic kidney disease.  Dr. Jackson proceeded to order prophylactic IV antibiotics for surgery of both Vancomycin 1g and Gentamicin 120 mg, with one dose of each before surgery and further doses 12 hours and 24 hours later.

    The surgery of November 21, 2017 was more difficult than anticipated, with more bleeding than normal, leading Dr. Jackson to postpone the posterior stage of this surgery after the anterior stage was completed. On the morning of November 22, 2017, after being adequately hydrated, the patient’s creatinine was measured as normal at 1.05 with a normal eGFR of 72.

    Plaintiff Mrs. Whittington testified that her husband demonstrated intermittent confusion at home in the days following surgery, and that she reported this development to the office of Dr. Jackson. She was reportedly told that the intermittent confusion was due to the patient’s anemia and was encouraged to double his doses of iron supplementation.

    Mrs. Whittington further testified that she and her husband were running late to their post-operative appointment with Dr. Jackson on December 6, 2017, and that they ran into Dr. Jackson’s physician assistant in the lobby of the office building. It was contended that the physician assistant conducted the post-operative appointment in the lobby of the office building, rather than upstairs in any exam room, and that the issue of the patient’s intermittent confusion was never addressed.

    On December 8, 2017, Mr. Whittington was brought to Mission Hospital emergency room in acute renal failure (with a creatinine of 6.48) and respiratory failure, requiring him to be intubated and admitted to the ICU. His renal function never recovered, and a renal biopsy on December 13, 2017 revealed acute tubular necrosis with myoglobin casts consistent with rhabdomyolysis, as well as tubular vasculopathy, potentially secondary to proteinuria, exposure to IV contrast, volume expanders, IVIG and certain nephrotoxic medications, such as Vancomycin. The treating physicians at Mission Hospital thereafter uniformly indicated in the medical records that Mr. Whittington had suffered acute renal failure as a result of exposure to nephrotoxic antibiotics, Vancomycin and Gentamicin.

    Mr. Whittington never recovered any renal function and will spend the rest of his life on dialysis.

  • Plaintiff's Contentions:

    Plaintiffs contended that it was below the standard of care for Dr. Jackson to have issued orders for prophylactic antibiotics in this case using nephrotoxic medications, Vancomycin and Gentamicin. It was alleged that it was completely unnecessary to order both of these medications, and in three separate doses, for a “clean” surgery of the cervical spine, especially with other alternatives available and preferred that would not be nephrotoxic. It was especially unnecessary to order Gentamicin to cover for gram negative infections since those would not be expected following a “clean” surgery of the cervical spine. Furthermore, that by ordering these two medications together, Dr. Jackson triggered a synergistic effect that made the two medications even more nephrotoxic. If Dr. Jackson truly believed that this patient with chronic kidney disease needed these antibiotics, it was alleged that he should have only done so with the advance blessing of a nephrologist or an infectious disease specialist.

    Plaintiffs alleged that these medications directly caused the patient’s acute and irreversible renal failure 17 days later on December 8, 2017.

  • Defendant's Contentions:

    The defense contended that the care rendered to this patient by Robert Jackson, M.D. complied with the standard of care in all respects. The defense argued that this was a complicated cervical spine surgery with multiple risk factors for the development of post-operative infections (diabetes, hypertension, anemia, instrumentation, manipulation of the esophagus), and that a post-operative infection at this location would be a devastating and life-threatening complication. Furthermore, the defense disputed that gram negative infections could not be expected after this type of surgery, since that complication had occurred in the past and especially at Mission Hospital.

    The defense acknowledged that the patient had Stage 3a chronic kidney disease, and that both Vancomycin and Gentamicin had the potential to be nephrotoxic, but not at these doses and duration. In addition, once properly hydrated at the time of surgery, the patient’s kidney function was completely normal, reflecting no difficulties clearing these antibiotics from his system.

    The defense argued that if the patient were to have suffered acute renal failure as a result of the prophylactic antibiotics, the patient would have become acutely ill long before December 8, 2017, and that his post-operative course was completely unremarkable through December 6, 2017 (denying the plaintiff’s testimony regarding reports of intermittent confusion at home after surgery and the alleged examination in the medical office building lobby). The renal pathology results were argued to have demonstrated acute renal failure secondary to rhabdomyolysis, proteinuria, tissue hypoxia and potentially sepsis.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Plaintiffs argued that the patient had required significant medical services over the past six years, and would in the future over his remaining 2.5-year life expectancy, primarily relating to complications from his lifetime dialysis. The Medicare lien for the last six years totaled $736,582, with future medical expenses estimated to have a present value of $819,178. The present value of lost household services was then calculated to be $174,484. Mr. and Mrs. Whittington further alleged that they had incurred $72,000 in out-of-pocket medical expenses since the patient’s acute renal failure in December, 2017.

    Both plaintiffs sought at least $250,000 (the statutory maximum) in non-economic damages for their injuries.

Demands and Offers

  • Plaintiff §998 Demand: Plaintiff Ben Whittington issued a 998 Offer in the amount of $950,000.00 to Dr. Jackson. Plaintiff Cheryl Whittington issues a 998 Offer in the amount of $50,000.00 to Dr. Jackson.

Additional Notes

Insurer: The Doctors Company