News: A patient developed a hematoma and vocal cord paralysis following a thyroidectomy. This was treated by the same physician who performed the surgery approximately three weeks after the first procedure. Although the patient’s voice was improving, two months after the hematoma extraction the wound was leaking and had not completely healed. Four days later, the physician performed another surgery to remove a piece of gauze from the patient’s wound.

The patient brought suit, alleging that the gauze removed from her neck had been left in the wound by the defendant in an earlier procedure on the day of the hematoma extraction. The jury returned a verdict in favor of the physician. The patient appealed, arguing that the court had abused its discretion in barring certain expert witnesses from testimony. She demanded a new trial, asserting that the jury’s verdict was against the manifest weight of the evidence. The appellate court affirmed the trial court’s position, exempting the physician from any liability in the matter and denying the plaintiff’s motion for a new trial.

Background: A physician performed a thyroidectomy on a patient. The patient subsequently developed a hematoma in her neck and vocal cord paralysis. The same physician extracted the hematoma from the patient’s neck and cured and packed the wound. Approximately one month later the defendant performed a wound exploration and removed a piece of gauze from the patient’s wound.

The patient alleged that the physician was negligent by failing to properly perform the hematoma extraction and wound exploration and by failing to remove a foreign object from the wound. Furthermore, the plaintiff claimed that the defendant’s negligence was a proximate cause of the injuries she sustained, including damage to her left recurrent laryngeal nerve which resulted in vocal cord paralysis. All of the patient’s claims relied upon the assumption that the gauze removed by the physician in the wound exploration procedure had been present since the hematoma extraction procedure.

At trial, the patient was barred from calling a physician expert witness to testify about possible causation between leaving the gauze in her wound and the injuries she suffered. Furthermore, the patient was not allowed to question the defendant physician about his two-time failure of the medical board examination. The court also sustained the physician’s objections to the patient’s line of questioning concerning informed consent and denied the patient leave to amend her complaint to allege a new legal theory.

The physician’s expert witness testified, claiming that the gauze was not deep in the patient’s wound and was nowhere near her laryngeal nerve. Furthermore, the patient’s injuries were known complications of the initial thyroidectomy, and such injuries can occur even if the standard of care is followed. Despite the patient’s appeal asserting that the trial judge had abused its discretion on the aforementioned matters, the appellate court found in favor of the defendant.

What this means to you: Lessons from this case reveal the importance of proving or disproving causation, a critical element in any medical malpractice case. Fortunately for the defendant physician in this case, the physician was able to undermine the plaintiff patient’s presentation of evidence and to present compelling testimony that the injuries were consistent with appropriate care. Expert testimony also played an important part in this malpractice action, and the physician succeeded in barring one of the patient’s potential experts from testifying.

On the issue of causation, the jury ultimately agreed with the physician and the physician’s expert that the injuries may have occurred even though the physician abided by the appropriate standard of care. Causation is an area that frequently requires testimony from an expert witness to establish the connection between the action or incident that allegedly produced the injury and the specific injury.

In this matter, the patient’s case relied on two fundamental assumptions relating to the event, injury, and causation: First, that the piece of gauze removed by the defendant had been “forgotten” in the plaintiff’s wound during or immediately after the extraction of the hematoma; and second, that the piece of gauze was responsible for causing the complications that led the plaintiff to develop vocal cord paralysis.

To support these assumptions and the case generally, the plaintiff attempted to introduce evidence by two expert physicians. However, the trial court determined that one physician was not qualified to provide expert opinion testimony and, although the plaintiff claimed the trial court abused its discretion in making such determination, the appellate court explained why the trial court’s decision was proper. The plaintiff wanted to introduce the physician’s testimony as evidence of causation between the gauze left in her neck and the injuries suffered. The expert physician’s opinion rested on the general principle that when a foreign object is left in a wound it causes inflammation which results in scarring.

However, at his deposition, the expert was questioned on whether he was familiar with the causes of vocal cord paralysis. He responded that he was not. Furthermore, the expert had never treated a patient who sustained injuries similar to those suffered by the plaintiff. In addition, the expert — a pathologist — had not treated a live patient since 1984 and had not had privileges at a hospital since 1986. As a result of all of these factors, the defendant argued and the trial court agreed that the offered expert physician was unqualified to opine on these issues of causation. This type of attack — undermining an opposing party’s case by disqualifying one of the identified purported experts — can be extremely effective as it was in this case. Medical care providers, along with their counsel, should thus evaluate the qualifications and background of a patient’s proffered experts in order to determine whether such challenges may be successful.

By contrast, the defendant was able to introduce a qualified expert who testified as to how vocal cord paralysis resulting from an injury to the left recurrent laryngeal nerve is a known and recognized complication of both a thyroidectomy and the development of a hematoma. According to the defendant, the injuries suffered by the patient occurred prior to the hematoma extraction and were in no way related to the piece of gauze left in the wound. Another expert physician — called by the plaintiff — also admitted that these complications were well-known and could occur as a result of a thyroidectomy procedure even in absence of negligence.

In this case, the jury did not find that the plaintiff satisfactorily proved causation. With these two experts concurring on causation, the defendant successfully raised significant doubt as to whether the plaintiff’s injuries were caused by any wrongdoing of the defendant. However, retained objects during surgery generally are extremely problematic and most do, eventually, cause serious problems.

Hospitals and surgery centers have been mandated to reduce the incidence of retained foreign bodies during surgery. Counting the sponges before and after a procedure is one more common way that these facilities deal with preventing retained sponges. If the sponge or instrument count is incorrect, there is a process to locate the missing item. Most sponges are now made with a radiopaque strip that can be viewed using an X-ray. By using X-ray evaluations of the surgical area, medical professionals can locate the foreign object or confirm that the object must be in a trash receptacle, on the operating room floor, or in an unknown location.

Finally, concerning the plaintiff’s challenges on appeal, the appellate court did not agree with the plaintiff’s claim that the trial court abused its discretion and denied the plaintiff’s request for a new trial. Such post-trial or post-verdict motions may be possible, but courts often are hesitant to undermine the findings and results from a jury unless there is a clear showing of wrongdoing or a disconnect between the presentation of evidence and the jury’s findings.

In the case at hand, the plaintiff failed to prove her case for negligence while the defendant provided evidence that the injuries suffered could have occurred in absence of any negligence. Although it could not be determined with certainty whether the physician had left the gauze in the patient’s neck for nearly two months, through expert testimony, the defendant successfully introduced evidence that the plaintiff’s conditions were well-known complications of a thyroidectomy. Furthermore, the plaintiff’s own expert corroborated this theory. Thus, the jury’s finding was consistent with the evidence presented at trial, and the appellate court denied the motion for a new trial.

REFERENCE

Decided on Nov. 13, 2018, in the Appellate Court of the State of Illinois, First District; Case Number 1-17-1307.