Former Duluth surgeon settles another lawsuit out of court

Former Duluth neurosurgeon Stefan Konasiewicz, who was found not negligent by a jury in a medical malpractice case earlier this month, has settled another malpractice case out of court. Terms of the settlement were not disclosed.

Ted and Donna Youker of Hermantown accused Konasiewicz and St. Luke’s hospital of negligence in a lawsuit filed last August. The suit claimed that Konasiewicz negligently performed spine surgery on Ted Youker, causing a permanent injury to his spinal cord.

A seven-day jury trial had been scheduled to start before Judge John DeSanto in St. Louis County District Court in Duluth on Sept. 20.

“It has been mutually and satisfactorily resolved,’’ said Minneapolis attorney James Sherburne, who represented the Youkers.

Sherburne said neither he nor his clients could comment on the settlement.

“There was a mutual confidentiality agreement as part of the settlement,’’ he said.

St. Paul attorney Mark Solheim, whose firm represented Konasiewicz, declined to comment. St. Luke’s administration didn’t return a phone call seeking comment Thursday.

Two malpractice claims against Konasiewicz have gone to trial. In both cases, a jury found that he did not commit malpractice and acted within the accepted standard for neurosurgeons.

The Youker case is not the first that the hospital has settled outside of court with patients who sued Konasiewicz. Between 2005 and 2008, Konasiewicz and the hospital have settled five malpractice cases filed against Konasiewicz for at least $3.2 million, records show.

According to court documents:

Youker originally injured his neck in a work-related accident in 2002. He was jacking up a roof when the jack kicked out and the roof dropped on him. He was diagnosed with a cervical spine injury and had continuous pain in his shoulder and down his right arm and hand. Another St. Luke’s physician referred him to Konasiewicz, who performed surgery on June 6, 2006.

As a result of the surgery, Youker claimed he experienced new weakness and numbness, and a limited ability to move about and to do fine manipulations with his hands. An MRI after the surgery revealed injury to the spinal cord nerve roots and permanent disabling neurological deficits, according to court documents.

Minnesota law requires a plaintiff who brings a lawsuit to submit an affidavit from a medical expert that specifically outlines the applicable standard of care, the manner in which the physician allegedly breached that standard of care, and a detailed chain of causation between the alleged breach and the patient’s claimed injury.

Dr. James Macon, a Massachusetts neurosurgeon and graduate of Harvard Medical School with 37 years of experience, provided that affidavit for the plaintiffs.

According to the court’s findings of fact, Macon opined that there were two probable ways that Konasiewicz breached the standard of care: First, the spinal cord could have been contacted by the surgical instruments or Konasiewicz could have pushed on the bone graft too deeply on insertion. Second, when Youker experienced new neurological deficits in the recovery room, Konasiewicz failed to order an MRI scan immediately to determine if either a hematoma had developed or if Gelfoam (an absorbable gelatin sponge used for arresting hemorrhage during surgery) had been left in after the surgery. Instead, Konasiewicz ordered a CT scan and x-rays.

Gelfoam was used during the surgery, according to preoperative nursing notes and the deposition of a witness, but there is no indication from testimony or postoperative notes that the Gelfoam was removed.

Jennifer Young, one of Konasiewicz’s attorneys, argued that Macon didn’t provide any factual basis for the surgical acts that he recited as “potential causes" of the problem. She filed a motion to dismiss the case. DeSanto denied the motion.

A check of state court records on Thursday showed Konasiewicz has one more malpractice case scheduled for trial in November. Michael and Suzanne Nelson filed the suit in St. Louis County District Court in Hibbing against Konasiewicz and co-defendants St. Luke’s, Pavilion Surgery Center and Duluth Neurosurgical Institute. Sixth Judicial District Judge Mark Starr is assigned to that case. Starr is on vacation this week and the court file on the case was in his chambers and not available for public review.

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