IN THE CIRCUIT COURT OF WASHINGTON COUNTY, ARKANSAS
CIVIL DIVISION
THERESA RENUART PAULINO, and
EDDIE PAULINO,
PLAINTIFFS,
vs.
DR. CYRIL ANTHONY RABEN, M.D., and
NWA SPINE & ORTHOPEDIC
ASSOCIATES, LLC d/b/a
NWA SPINE & ORTHOPAEDIC
ASSOCIATES, LLC, and
QHG OF SPRINGDALE, INC. d/b/a/
NORTHWEST MEDICAL CENTER, and
MELANIE RICHARD, R.N. and
AMERICAN INTRAOPERATIVE
MONITORING, LLC, individually
DEFENDANTS.

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) CASE NO. 08-3459-6
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) JURY TRIAL DEMANDED. A
) JURY TRIAL HAS BEEN SET IN
) THE HONORABLE MARK
) LINDSEY’S COURT ON OCT. 26,
) 2009, THROUGH NOV. 6, 2009.
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SECOND AMENDED COMPLAINT
COMES NOW Plaintiffs, Theresa and Eddie Paulino, by and through their undersigned
counsel, Sach D. Oliver, with the Bailey & Oliver Law Firm, and for their Second Amended
Complaint to the Court states as follows, to-wit:
PARTIES
1.

Plaintiffs Theresa and Eddie Paulino were, at the time of the incident giving rise

to this action, and are, at the time of this Complaint, residents of Bentonville, Benton County,
Arkansas.

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 2.

Defendant Dr. Cyril Anthony Raben (hereafter referred to as “Defendant Raben”)

is a resident of Washington County, Arkansas. Defendant Raben can be served at 3451 E.
Fredricksburg Circle, Fayetteville, AR 72703.
3.

Defendant NWA Spine & Orthopedic Associates, LLC d/b/a NWA Spine &

Orthopaedic Associates, LLC (hereafter referred to as “Defendant NWA Spine Clinic”) is an
Arkansas Limited Liability Corporation with its principle place of business in Fayetteville,
Washington County, Arkansas. Defendant NWA Spine Clinic’s registered agent for service of
process is Cindy K. Raben. Defendant NWA Spine Clinic can be served at 350 E. Millsap Road,
Fayetteville, AR 72703.
4.

Defendant QHG of Springdale, Inc. d/b/a Northwest Medical Center (hereafter

referred to as “Defendant Northwest Medical Center”) is an Arkansas Corporation with its
principle place of business in Arkansas. Defendant Northwest Medical Clinic’s registered agent
for service of process is Corporation Service Company. Defendant Northwest Medical Clinic
can be served at 300 Spring Building, Suite 900, 300 South Spring Street, Little Rock, AR
72201.
5.

Defendant American Intraoperative Monitoring, LLC (hereafter referred to as

“Defendant AIM”) is an Oklahoma Limited Liability Corporation with its principle place of
business in Oklahoma City, Oklahoma County, Oklahoma. Defendant AIM’s registered agent
for service of process is Rouse Brandon. Defendant AIM can be served at 2500 Steeplechase,
Edmond, OK 73034.
6.

Defendant Melanie Richard, R.N. (hereafter referred to as “Defendant Richard“)

is an employee of Defendant AIM. After a good faith effort, the Plaintiff is unable to ascertain
Defendant Richard’s residential address. However, Defendant Richard may be served at one of

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 the places of her employment; Sparks Regional Medical Center, Fort Smith, Arkansas, St.
Edward Mercy Medical Center, Fort Smith, Arkansas, or American Intraoperative Monitoring,
Oklahoma City, Oklahoma.
7.

At all times relevant herein, Defendant Raben was an employee of Defendant

NWA Spine Clinic and was acting within the course and scope of his employment with
Defendant NWA Spine Clinic.
8.

At all times relevant herein, Defendant Richard was an employee of Defendant

AIM and was acting within the course and scope of her employment with Defendant AIM.
JURISDICTION AND VENUE
9.

The acts forming the basis of the Complaint occurred in Washington County,

Arkansas.
10.

Based on the foregoing, this Court has subject matter jurisdiction over this action

and in personam jurisdiction over the parties. A substantial part of the events or omissions
giving rise to this claim occurred in Washington County, Arkansas. Jurisdiction for this cause is
appropriate in Washington County, Arkansas, Circuit Court pursuant to A.C.A. §16-13-201.
Venue is proper in this Court pursuant to A.C.A. § 16-55-213(e).
11.

The amount in controversy relating to all counts and causes of action forming the

basis of this lawsuit, exclusive of interests and costs, is far in excess of the amount required for
Federal Court Jurisdiction in diversity of citizenship cases.
FACTS
12.

This is an action for damages stemming from a surgery that took place on

December 17, 2007.

3

 13.

Plaintiff Theresa Paulino (hereinafter referred to as “The Plaintiff”) moved to

Arkansas to be near her family in the Winter of 2006.
14.

Before moving to Arkansas, the Plaintiff had a surgical lamenectomy, performed

by a doctor in Montana, to remove bone spurs from her neck. This surgery was done in the
hopes of relieving the Plaintiff’s chronic neck pain and replenishing strength in her left arm.
15.

The Montana surgery was a success, providing relief to the Plaintiff and allowing

her to regain strength in her arm.
16.

Upon moving to Arkansas and returning to full-time work, the Plaintiff noticed

the radiating pain that started in her neck had returned.
17.

Desiring to require less pain medication, and looking for a more permanent pain

solution, the Plaintiff was referred to Defendant Raben for medical treatment.
18.

On November 17, 2006, Defendant Raben performed decompressive anterior

cervical discectomy and fusion surgery on the Plaintiff in the C3 through C7 region.
19.

Follow-up CT scans showed failure of the fusion at the C6-7 region. The scans

also showed that at least two of the screws used to hold the medical hardware in the Plaintiff’s
neck were backing out.
20.

On or about October of 2008, Defendant Raben recommended the Plaintiff

undergo another surgery performed by Defendant Raben. The goal of this surgery was to
remove the old medical hardware, replace the hardware with newer medical hardware, remove
bone spurs, and attempt to fuse the region that failed to fuse in the previous surgery.
21.

On December 17, 2007, at or about 10:55 a.m. CST, Defendant Raben began the

surgical procedure giving rise to this action. Dr. Raben attempted to perform an anterior cervical
corpectomy. The procedure ended at 5:02 p.m. CST.

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 22.

During the operation, Defendant Raben placed a screw into the graft, in the

corpectomy space, in the vertebral body.
23.

During the operation, Defendant Raben pushed the bone graft 5 to 7 millimeters

into the epidural space, impinging the spinal cord.
24.

In a sworn deposition, conducted on January 16, 2009, Defendant Raben testified

that Defendant AIM monitored the Plaintiff’s intraoperative neurophysiologic function during
the Plaintiff’s first December 17, 2007 surgery.
25.

Defendant Raben testified that the Defendant AIM monitoring team (specifically

Defendant Richard) never reported any change in the Plaintiff’s neurophysiologic function
during the Plaintiff’s first December 17, 2007 surgery.
26.

Defendant Raben testified that Defendant Richard, an employee of Defendant

AIM, in charge of monitoring the Plaintiff’s neurophysiologic function during surgery, did not
notify him during the Plaintiff’s first surgery on December 17, 2007 surgery that lower extremity
neurophysiologic response became absent at 3:19 p.m.
27.

Defendant Raben testified that, at no time during the Plaintiff’s first surgery on

December 17, 2007, was he notified by Defendant Richard that lower extremity
neurophysiologic response was lost, nor was he notified that lower extremity neurophysiologic
response was absent at closing.
28.

Attached as Exhibit “A” to this Second Amended Complaint is Defendant AIM’s

Summary of Findings and Surgical Logbook which notes a loss of neurophysiologic function at
3:19 p.m. during the Plaintiff’s first December 17, 2007 surgery.

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 29.

Upon waking up in the hospital recovery room, the Plaintiff complained of

extreme pain in her neck and shoulders. The Plaintiff also told the nurses in the recovery room
that she could not feel anything below her chest.
30.

After the first surgery on December 17, 2007, the Plaintiff was transported by

Northwest Medical Center employees to radiology for a post-operative CT scan of her cervical
spine on the orders of Defendant Raben. A stat CT scan was taken at approximately 7:25 p.m.
CST (Attached as Exhibit “C”).
31.

The reading radiologist found the strut graft, placed by Defendant Raben was

extending into the central canal, and was likely contributing to the impingement of the Plaintiff’s
spinal cord. The reading radiologist also found the bone extended into the epidural space
approximately 5 to 7 millimeters.
32.

After receiving the findings of the CT scan, the Plaintiff was prepped for a second

emergency surgery and transported to the operating room.
33.

Defendant Raben began the second emergency surgical procedure on the Plaintiff

at 8:15 p.m. CST. The second surgical procedure ended at 10:33 p.m. CST.
34.

During the second emergency surgery, Defendant Raben did not place a screw

into the bone graft in the corpectomy space in the vertebral body.
35.

During the second surgery, Defendant Raben did not push the bone graft into the

epidural space.
36.

After the second procedure, the Plaintiff could barely move her arms, had pain in

her neck, and could not feel her legs. To date, despite intensive therapy, the Plaintiff is unable to
use her legs. The Plaintiff has not been able to walk since the morning of December 17, 2007,
the date of her surgery.

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 COUNT I – MEDICAL NEGLIGENCE
Theresa Paulino
v.
Defendant Raben, Defendant NWA Spine, Defendant Richard, & Defendant AIM
37.

Paragraphs 1 through 36 above are hereby incorporated into Count I as though

fully set forth herein.
38.

Defendant Raben was medically negligent when he failed to apply with

reasonable care that degree of skill and learning ordinarily possessed and used by orthopedic
surgeons in good standing engaged in the same type of service or specialty in the same or similar
community in his care and treatment of the Plaintiff.
39.

Defendant NWA Spine Clinic, as employer of Defendant Raben, is vicariously

liable for the medical negligence of Defendant Raben through the theory of Respondeat
Superior.
40.

The primary objective in intraoperative neurophysiologic monitoring is to identify

and prevent the development of a new neurologic deficit or worsening of a preexisting
neurologic injury to a patient who is undergoing surgery.
41.

The aim of most spinal cord monitoring is to prevent intraoperative injury that

results in irreversible paraplegia or quadriplegia.
42.

It is imperative that there be a good established working relationship between the

intraoperative neurophysiology team, anesthesiologist, and the surgeon. This allows for rapid
communication between teams and a quick resolution of issues, thus optimizing the benefits of
intraoperative neurophysiologic monitoring for the patient.
43.

The intraoperative neurophysiology team should understand the type of surgery

the patient is to undergo, the intraoperative injuries that may occur, as well as the mechanics of

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 how these injuries occur in surgery. By planning ahead with these issues in mind, the team
should plan for interventions to reduce intraoperative neurologic injury.
44.

A significant change in somatosensory-evoked potential monitoring should trigger

further assessment of the patient’s motor function by waking the patient up during surgery to
evaluate leg and arm motor function (called a “wake-up test”).
45.

Intraoperative neurophysiologic monitoring of the spinal cord is used to help

detect the early occurrence of neurophysiologic changes, thereby allowing corrective action to
reduce the incidence of neurologic injury to patients undergoing spine surgery.
46.

One of the most important aspects of successful intraoperative monitoring is rapid

communication between the neurophysiologic team and the surgical/anesthesia teams.
47.

Defendant Richard was medically negligent when she failed to apply with

reasonable care that degree of skill and learning ordinarily possessed and used by Intraoperative
Neurophysiologic Monitoring Technicians in good standing engaged in the same type of service
or specialty in the same or similar community in her care and treatment of the Plaintiff.
48.

Defendant AIM, as employer of Defendant Richard, is vicariously liable for the

medical negligence of Defendant Richard through the theory of Respondeat Superior.
COUNT II – ORDINARY NEGLIGENCE
Theresa Paulino
v.
Defendant AIM
49.

Paragraphs 1 through 48 above are hereby incorporated into Count II as though

fully set forth herein.

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 50.

Defendant AIM, by and through its agents, employees, and staff was ordinarily

negligent when it failed to act with the prudence that a reasonably careful person or entity would
exercise under circumstances similar to those in this case.
51.

The negligence of Defendant AIM includes, but is not limited to, the following:
a. Negligent hiring;
b. Negligent training; and
c. Negligent supervision.
COUNT III – NEGLIGENT CREDENTIALING
Theresa Paulino
v.
Defendant Northwest Medical Center

52.

Paragraphs 1 through 51 above are hereby incorporated into Count III as though

fully set forth herein.
53.

On or about May of 2007, in response to a request by the Arkansas State Medical

Board, John L. Wilson, M.D., an Arkansas orthopedic surgeon, reviewed 15 of Defendant
Raben’s previous medical cases.
54.

In a letter dated, May 9, 2007 (attached to this Second Amended Complaint as

Exhibit “B”), preserved in Defendant Raben’s file with the Arkansas State Medical Board, Dr.
Wilson noted a complication rate of 73.3% in Defendant Raben’s cases.
55.

Dr. Wilson states that the average complication rate is approximately 20-22%.

56.

In a subsequent letter, dated September 4, 2007 (attached as Exhibit “D”) Dr.

Wilson goes on to state, “Dr. Raben recommends surgery with indications that are at best
scant.”

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 57.

In that same correspondence, Dr. Wilson also notes, “With his surgical charges

being quite high, it appears that he [Defendant Raben] is more interested in income than
outcome.”
58.

Defendant Northwest Medical Center has an affirmative duty to all its patients,

including the Plaintiff, to use ordinary care in the selection of its medical staff. Defendant
Northwest Medical Center knew, or should have known, Defendant Raben was incompetent.
Defendant Northwest Medical Center failed to use ordinary care in the selection of its staff, and
failed to act with the prudence that a reasonably careful person or entity would exercise in
similar circumstances, which was a proximate cause of the Plaintiff’s injuries.
DAMAGES
59.

Paragraphs 1 through 58 above are hereby incorporated into Damages as though

fully set forth herein.
60.

As a direct and proximate result of the negligence of the Defendants, the Plaintiffs

have endured immeasurable damages.
61.

Specifically, due to the negligence of Defendant Raben, the Plaintiff, Theresa

Paulino, is entitled to damages for the following:
a) The nature, extent duration, and permanency of her injuries, both temporary and
permanent;
b) The reasonable expense of all necessary medical care, treatment, and services
received including transportation and board and lodging expenses necessarily
incurred in securing such care, treatment, or services;

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 c) The present value of all necessary medical care, treatment, and services including
transportation and board and lodging expenses necessarily incurred in securing
such care reasonable certain to be required in the future;
d) The pain, suffering, and mental anguish experienced in the past;
e) The pain, suffering, and mental anguish reasonably certain to be experienced in
the future;
f) The value of any earnings lost;
g) The present value of any earnings reasonably certain to be lost in the future;
h) The present value of any loss of ability to earn in the future;
i) The scars, disfigurement, and visible results of her injuries;
j) The reasonable expense of any necessary help in her home, which has been
required as a result of her injury negligently;
k) The present value of any necessary help in her home reasonably certain to be
required in the future;
l) All other damages afforded under the law or deemed applicable by
the Arkansas Model Jury Instructions.
62.

Plaintiff Eddie Paulino is entitled to fair compensation for the reasonable value of

any loss of the services, society, companionship, and marriage relationship of his wife
proximately caused by the negligence of Defendant Raben, and for all other damages afforded
under the law or deemed applicable by the Arkansas Model Jury Instructions.
63.

The Plaintiff reserves the right to amend this pleading liberally as provided by the

Arkansas Rules of Civil Procedure.

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 64.

Both Plaintiff, individually, have suffered damages in an amount in excess of the

amount necessary for Federal Court Jurisdiction in diversity cases.
65.

A jury trial has been set for this matter in the Honorable Mark Lindsay’s court on

October 26, 2009, through November 6, 2009.
WHEREFORE, premises considered, Plaintiffs pray for judgment against the Defendants
jointly and severally, in an amount in excess of the amount necessary for Federal Court
Jurisdiction in diversity cases, the exact amount to be determined by a jury; for interest; costs;
and all other relief the Court deems just and proper.
Dated this ____ day of January, 2009.
THERESA PAULINO, and
EDDIE PAULINO
PLAINTIFFS

By:

___________________________
Sach D. Oliver, AR Bar #2006251
Frank H. Bailey, AR Bar #74004
T. Ryan Scott, AR Bar #2008161
BAILEY AND OLIVER LAW FIRM

2000 SE 14th Street
Bentonville, AR 72712
Phone: (479) 273-1445
Fax: (479) 657-6758
Attorney for Plaintiff

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 CERTIFICATE OF SERVICE
This is to certify that I have this day served counsel for all parties in the foregoing matter
with a copy of this pleading by facsimile at the number listed below.
Dated this ____ day of January, 2009.
Served on:
David Littleton
ANDERSON, MURPHY & HOPKINS, LLP
400 W. Capitol Avenue, Suite 2470
Little Rock, Arkansas 72201
Fax No.: 501-372-7706
_______________________
Sach D. Oliver

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