John Ratkowitz is a partner at Starr, Gern, Davison & Rubin, P.C. John has successfully recovered millions of dollars in verdicts and settlements on behalf of clients in New Jersey. John is published extensively in the areas of medical malpractice and patient safety. Contact John at (973) 830-8441 or email@example.com.
The plaintiff discovered a lump on the right side of her neck while showering. She consulted with her primary care physician who placed her on antibiotics for one week. When the lump did not go away, the plaintiff was referred for a CT scan, which was within normal limits. At that point, the plaintiff was referred to the defendant otolaryngologist.
The defendant ordered a second CT scan, which was also read as normal. Nevertheless, because a palpable mass was present and the defendant saw an abnormality in the pyriform sinus, he recommended a biopsy of the mass and a laryngoscopy.
The defendant performed an exisional biopsy and laryngoscopy. Within six weeks of the procedure the plaintiff could no longer lift her arms over her head. She went on to develop muscle wasting in her trapezius and eventually developed pain traveling down her right arm into her fingers.
Remarkably, when the defendant saw the plaintiff postoperatively he charted that he suspected an injury to the spinal accessory nerve. Nevertheless, he never advised the plaintiff of this fact, and she sought further follow-up care through a neurologist and spinal surgeon. The spinal surgeon recommended cervical fusion surgery. Fortunately, the plaintiff performed her own research and ascertained that she suffered an injury to her spinal accessory nerve during the lymph node biopsy.
Pre-suit research revealed that lymph node biopsies are a common cause of spinal accessory nerve injury. When an ENT suspects possible cancer because of neck adenopathy, accepted standards of care require that a fine needle aspiration biopsy be performed to avoid possible nerve injury. If a FNA biopsy is non-diagnostic, an excisional biopsy may be performed, but if the lymph node is in the area of the spinal accessory nerve, the nerve must be identified and preserved. The evidence established the defendant never attempted a FNA and never attempted to identify the spinal accessory nerve during the excisional surgery.
The defense hired an ENT who indicated that the defendant was not negligent because there was a possibility that the plaintiff might be suffering from Hodgkin’s lymphoma, and that condition cannot always be diagnosed with a FNA. This opinion, however, was not supported by the medical literature. The defendant also hired an orthopedic surgeon and a neurologist, who opined that the plaintiff’s postoperative problems were also related to cervical spine degeneration. This was contradicted by the records and the literature.
The case was resolved one week prior to the scheduled trial. The amount of the settlement is confidential.