The estate of a deceased neurosurgeon who botched a spinal fusion, then caused further damage during revision surgery, has been ordered to pay almost five million dollars in damages to his patient.

Perth neurosurgeon Dr Emil Popovic first saw 55-year-old Barry Espinos in October 2010, recommending spinal fusion to L5/S1 with dynamic stabilisation at L4 to treat his longstanding back problems and left leg pain, according to a legal case heard at the District Court of Western Australia.

But during surgery the following month, Dr Popovic fused the patient’s spine at L4/5 level and stabilised at L3, leaving Mr Espinos with worse pain back and bilateral leg pain, the court was told.

Revision surgery was scheduled for December but abandoned due to infection, so on 2 February 2011 Dr Popovic performed a fusion of L5/Sl fusion and replaced screws at the L4 and L5 level.

During the revision surgery, Dr Popovic inserted a right S1 pedicle screw that was medially malpositioned and damaged the patient’s right S 1 pedicle and right S 1 nerve root.

Following this, Mr Espinos reported severe right leg neuropathic pain and a CT scan on February 4 revealed the surgeon had misplaced two screws, with one penetrating the spinal canal.

However the error was not reported by the radiologist nor discovered by Dr Popovic until he operated again on February 11 to ‘explore the right L5 nerve’, and repositioned the screws correctly.

Following the fourth surgery Mr Espinos “remained in great pain and could not walk unaided” the court heard. Meanwhile, Dr Popovic died in March, weeks after performing the fourth surgery.

Expert witnesses said that if Mr Espinos had single level spinal fusion at L5/S1, there was “every prospect” he would have returned to work at his landfill and mulching business of 35 years.

Instead, the former recreational pilot had not returned to work, suffered constant neuropathic pain controlled by an implanted neurostimulator and medication, and was “mostly dependent upon his wife”, said Judge Gillian Braddock in her ruling delivered on August 8.

Judge Braddock said Dr Popovic was negligent in his surgery on February 2, and subsequently in his failure to detect the misplacement of the screws.

A competent surgeon would have detected the error and it was “inconceivable that, had he properly performed a palpation, the intrusion of the screw could have been missed”, she said.

Ordering damages of $4,817,311, Judge Bannock said:“I am satisfied to the required standard that Mr Espinos’ ongoing pain and spinal symptoms are due substantially to the breaches of duty by Dr Popovic, and that his ongoing further treatment in relation to his spine and pain are as a result of that damage”.