MANKATO — The family of a Madison Lake girl who was paralyzed after back surgery can seek punitive damages from the former Mankato neurosurgeon they are suing.

Scott and Lisa Hammett, on behalf of their 13-year-old daughter, Kourtney, sued Dr. Guy Sava and ISJ Mayo Health a year ago. The suit alleges Sava performed unnecessary surgery and did the procedure wrong, despite advice from another neurosurgeon.

The case was to go to trial this week in Blue Earth County, but it has been rescheduled for Oct. 15. The delay was granted after Judge Norbert Smith granted a request by the Hammetts to seek not only actual damages but punitive damages against Sava.

The judge ruled that, based on testimony so far, there is prima facie evidence to suggest Sava, “Acted with willful indifference (and) that his actions created a high probability of injury.”

Prima facie means evidence is sufficient to prove the case unless there is substantial contradictory evidence presented at trial.

Smith said testimony showed Sava was instructed that performing the surgery in a certain way would present a risk of spinal cord injury, but he utilized that approach anyway. And, Smith said, that when Sava consulted with other surgeons, he failed to tell them Kourtney was pain free and that her fracture was completely healed, which would have affected their opinion on whether surgery was necessary.

While the Hammetts can now seek punitive damages against Sava, they are not seeking punitive damages against ISJ.

“There’s no evidence ISJ was independently negligent. ISJ’s responsibility is as an employer of Dr. Sava,” said the Hammetts’ attorney, Robert King of Minneapolis.

J. Richard Bland, the Minneapolis attorney representing Sava and ISJ, did not return a telephone call.

Sava is now a physician in Somerset, Ky. The Kentucky Board of Medical Licensure had placed restrictions on Sava’s license when he went to work there last summer and lifted the restrictions late last year. The restrictions were applied because Sava had admitted to falsely obtaining prescription pain killers for personal use in 2000-2001.

Kourtney Hammett was operated on by Sava in the fall of 2005. Following the spinal surgery, Hammett had no feeling in her lower body. She had suffered a vertebrae compression fracture in the summer of 2005 after falling from her bike. She spent 12 weeks wearing a back brace. According to the complaint, Sava, 64, examined her in August “and (she) was noted by him to be completely pain free and without any physical limitations.”

The suit claims spine X-rays and an MR scan showed the girl’s vertebra fracture to have completely healed and her spinal curvature to be within normal limits.

The couple said Sava still recommended an “OptiMesh Kyphoplasty spine surgery” on the girl. The couple agreed and she underwent surgery.

The suit claims the type of surgery done is, “Indicated for the treatment of chronically painful compression fractures of the spine caused by weakened bone structure,” something the girl did not suffer from.

According to a medical journal article, OptiMesh surgery involves inserting a needle between damaged vertebra. A small mesh balloon is then inserted and filled to create space between compressed vertebra. The space is then filled with cement. The OptiMesh system was developed by a Minnesota company called Spineology Inc.

The Hammetts already have reached a settlement with Spineology Inc. Details of the settlement were sealed by the court.

Judge Smith denied a request by Sava and ISJ to change the location of the upcoming trial out of Mankato. Smith wrote there has not been significant media publicity about the case and did not believe a change of venue was necessary.

Sava was the target of a federal criminal case three years ago after he fraudulently got prescription painkillers for his own use.

Between March 2000 and June 2001, Sava used the names of relatives and friends as fictitious patients in writing 68 false prescriptions to obtain more than 8,700 tablets of hydrocodone.

The U.S. Attorney’s Office filed charges in the case. Two years ago this month, Sava agreed to pay a $200,000 civil penalty and abide by a number of conditions to settle the case.