I think the plaintiff is motivated to settle. I hate to be blunt but they have a weaker negotiating position compared to some of the cases I've published since they didn't die. Also they signed an informed consent that included possibility of nerve injury, jury is unlikely to return a verdict for the plaintiff in my opinion.
It’s amazing what expert witnesses will say to favor the plaintiff. They quote both the operative note and consent form that patient was consented to nerve injury as a known complication, yet conclude that SOC was deviated from. It’s unfortunate the patient is now left with this disability, but I doubt this stands a chance in court because of the good documentation.
It's tempting to take it all the way to trial, but on the flip side, a jury is a roll of the dice. Always a chance they come out of nowhere with a $10 million verdict. The defendants would be kicking themselves for not taking the 750k settlement. I would estimate the odds of a defense verdict at 85%.
This is definitely outside my scope and while the injury feels very much within SOC and simply an unfortunate, but expected complication, the multiple visits prior to diagnosis does feel a bit long, no?
I'm ENT and I would disagree and think that this does represent deviation from SOC - CN11 is well known to be extremely superficial in level V (posterior to the SCM where this was) and the second I at am platysma I would switch to blunt dissection to avoid injury. It is often immediately under the platysma. So the op report where he just excises the mass with electrocautery tells me he did not know this. Would never do that in that location.
And yes we do see CNXI injuries with neck dissections especially in post-chemoradiated necks, but I would say it should be extremely unlikely with a simple lymph node biopsy in a clean neck.
I will add that I work in a field where I frequently see patients who have had neck dissections by fellowship-trained ENTs, and you see CN XI injuries all the time as a result of the surgeries.
As a fellowship trained H&N surgeon I will note that oncologic surgery may require sacrifice of the spinal accessory nerve, and that often if you have to peel lymph nodes off the nerve or you have to retract it to get out a big node thats underneath it, you get temporary weakness. So the oncologic surgeries are substantially different than a straightforward excision node biopsy. Radiation can also cause injury of the nerve as well.
The rate of SAN dysfunction after neck dissection when the nerve is fully intact is often quoted around 20%.
I think understanding whether the surgeon paralyzed the patient for the case would provide a lot of information. If the patient was paralyzed and the surgeon mowed down with a bovie, then I think he just wasn't thinking of the nerve at all.
Yes exactly. It's a big motor nerve so if the patient wasn't paralyzed and the surgeon got anywhere close to it with a bovie the shoulder would move in a pretty obvious way.
Makes me wonder why we even take the time to get informed consent. Seems like the only thing patients ever consent to is a perfect operation and perfect results. No more "acts of God" just malpractice and someone (the deepest pockets) need to pay up.
Thanks for an anatomical case. Also, I’m surprised at what appears to be a low settlement offer.
I think the plaintiff is motivated to settle. I hate to be blunt but they have a weaker negotiating position compared to some of the cases I've published since they didn't die. Also they signed an informed consent that included possibility of nerve injury, jury is unlikely to return a verdict for the plaintiff in my opinion.
Had not thought about it that way. Thanks for this insight which makes sense.
It’s amazing what expert witnesses will say to favor the plaintiff. They quote both the operative note and consent form that patient was consented to nerve injury as a known complication, yet conclude that SOC was deviated from. It’s unfortunate the patient is now left with this disability, but I doubt this stands a chance in court because of the good documentation.
It's tempting to take it all the way to trial, but on the flip side, a jury is a roll of the dice. Always a chance they come out of nowhere with a $10 million verdict. The defendants would be kicking themselves for not taking the 750k settlement. I would estimate the odds of a defense verdict at 85%.
This is definitely outside my scope and while the injury feels very much within SOC and simply an unfortunate, but expected complication, the multiple visits prior to diagnosis does feel a bit long, no?
I'm ENT and I would disagree and think that this does represent deviation from SOC - CN11 is well known to be extremely superficial in level V (posterior to the SCM where this was) and the second I at am platysma I would switch to blunt dissection to avoid injury. It is often immediately under the platysma. So the op report where he just excises the mass with electrocautery tells me he did not know this. Would never do that in that location.
And yes we do see CNXI injuries with neck dissections especially in post-chemoradiated necks, but I would say it should be extremely unlikely with a simple lymph node biopsy in a clean neck.
I will add that I work in a field where I frequently see patients who have had neck dissections by fellowship-trained ENTs, and you see CN XI injuries all the time as a result of the surgeries.
Rehab? Neuro clinic?
Onc
As a fellowship trained H&N surgeon I will note that oncologic surgery may require sacrifice of the spinal accessory nerve, and that often if you have to peel lymph nodes off the nerve or you have to retract it to get out a big node thats underneath it, you get temporary weakness. So the oncologic surgeries are substantially different than a straightforward excision node biopsy. Radiation can also cause injury of the nerve as well.
The rate of SAN dysfunction after neck dissection when the nerve is fully intact is often quoted around 20%.
I think understanding whether the surgeon paralyzed the patient for the case would provide a lot of information. If the patient was paralyzed and the surgeon mowed down with a bovie, then I think he just wasn't thinking of the nerve at all.
Are these cases typically done with no paralytic to allow monitoring of the nerve?
Yes exactly. It's a big motor nerve so if the patient wasn't paralyzed and the surgeon got anywhere close to it with a bovie the shoulder would move in a pretty obvious way.
Makes me wonder why we even take the time to get informed consent. Seems like the only thing patients ever consent to is a perfect operation and perfect results. No more "acts of God" just malpractice and someone (the deepest pockets) need to pay up.
Its still worth doing but it definitely is frustrating to see cases like this where the bad outcome was listed on the consent.