A 44-year-old dentist (Dr. P) presented to an ENT surgeon (Dr. K) to discuss treatment options for nasal congestion.
Initial treatment attempts with steroid nasal sprays were not successful.
He was diagnosed with a deviated nasal septum, hypertrophic nasal turbinates, and persistent sinusitis.
The patient underwent a surgery by Dr. K, described as “bilateral ethmoidectomy, bilateral antrostomies, endoscopic concha bullosa repair, nasal septoplasty, and internal nasal valve repair”.
The first few post-operative days were uncomplicated.
However, he began having increased sinus pressure.
At some point, the patient manipulated his nose and may have damaged the surgical field.
10 days after the procedure, he developed bleeding that was cauterized with silver nitrate.
Nasal endoscopy revealed a large septal perforation and the middle turbinate was scarred to the lateral wall.
The patient continued to have worsening sinus pressure, headaches, loss of smell, and difficulty breathing through his nose.
Dr. P felt that his post-surgical outcome was far worse than the mildly-annoying sinus symptoms he had been experiencing previously.
He sought second opinions from other ENTs.
They recommended revision procedures to repair the septal perforation.
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Dr. P sued Dr. K, his employer, and the hospital.
The plaintiff’s ENT expert opinion is shown here:
The plaintiff also hired an expert who had a PhD in otolaryngology (Dr. D).
He prepared presentations for the jury about nasal anatomy and was described as “an expert on the sense of human smell”.
He billed the defense attorneys for a deposition that last just under 4 hours.
The defense hired numerous experts, including an ENT physician:
Editor’s Note: Dr. Be is the defense expert and Dr. Bo is the plaintiff’s expert.
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There is no record of any settlement negotiations.
The hospital and the ENT group were removed from the case.
The case went to trial.
At trial, the testimony of the plaintiff’s non-physician olfactory expert (Dr. D) was severely limited by the judge because he was not an ENT surgeon.
The judge allowed the defense to present evidence that the patient actually caused the poor outcome by manipulating his nose and upper lip, despite requests by the plaintiff’s attorney to ban discussion of this event.
The jury found in favor of Dr. K.
The plaintiff filed a motion asking the judge to set aside the verdict and hold a new trial.
This motion highlights multiple issues that the plaintiffs had with the way the judge presided over the trial.
The judge denied the motion to set aside the verdict and it was finalized.
However, the plaintiffs have now appealed the ruling to a higher court.
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MedMalReviewer Analysis:
Doctors and other highly educated healthcare professionals can be very challenging patients. They (we) have high expectations and can be more critical of poor outcomes. I would imagine that this patient was consented for risk of perforation, but the patient nonetheless decided to sue. Our peers are often our harshest critics, and this principle applies between colleagues and across the physician-patient relationship. I’ve covered other cases of physicians suing physicians.
The plaintiff claims that his initial symptoms were not severe, and that he simply saw Dr. K to “determine if there was a treatment that could help him”. This phrasing seems to suggest that he was not pushing for surgery, and leads to the implication that it was Dr. K who aggressively pushed him toward surgery. Clear documentation that you discussed the risks with a patient is always important, but especially so when a patient displays any hesitancy. I have a hypothesis that pre-operative hesitancy is strongly associated with increased likelihood of being sued.
I’ve covered malpractice lawsuits related to loss of vision and loss of hearing, but this is the first I’ve covered related to loss of smell. I think we’ll see more and more lawsuits addressing sense of smell (and the appropriate financial compensation if it is lost due to negligence) as tangents to COVID-related lawsuits. The olfactory expert made thousands of dollars on this lawsuit, and is probably well positioned to build an extremely lucrative career as a legal consultant.
The surgery in question happened over 11 years ago and the lawsuit is still active. This is a bit of an anomaly, but it does seem unjust to make both sides wait for decades to reach a conclusion either way.
Great example (to me) of poor outcomes leading to a patient dissatisfied enough to sue despite being (likely) well counseled as to possible (not probable) outcomes. Also horrifying that an expert would claim that septal perforation is due to a substandard surgery rather than a known complication of surgery, much less claiming that persistent or recurrent sinus disease after surgery is somehow related to a malpractice level event..... Crazy that it is still going on a decade later. Great summary!
Interesting. As to doctors suing doctors, or not…I’m a retired orthopedic surgeon/attorney. I went for a TKR locally, in 2016, thinking a primary total knee, in a healthy person with little deformity but for mild:moderate varus, in a normal wt patient, is about as easy an operation as it gets. I woke up with new patella-femoral symptoms. After about 6/8 weeks, and being blown off by the surgeon’s office, I ordered a CT, which confirmed what I suspected-the patella button was grossly malpositioned. I followed up with the surgeon, who tried to “explain” that I wasn’t seeing what I was obviously seeing! I asked him-did you let the resident put in the patella n close after you left the room-KNOWING your patient was an orthopedic surgeon AND an attorney?! He was embarrassed, apologetic, etc. I did not sue him. Just “lived with it “, despite what imo was an inexcusable fuck up. Because 1. I did not want to sue another doctor, and 2. Notwithstanding this error, my overall knee pain , at the femoral/tibial articulation was strikingly better. That said, my patella femoral ‘joint’, which I had no symptoms from pre op, has continued to be a problem. I guess my point is, no, not all, or even most, doctors are hyper critical of their care.