News: A patient underwent sinus surgery that left her with a permanent loss of smell, an altered sense of taste, and other injuries. The patient filed a malpractice lawsuit, alleging the physician failed to inform the patient of a dural patch placed during the surgery, and otherwise acted negligently during the procedure.

At trial, the patient was awarded $1.1 million. The defendant appealed, and the appellate court vacated the verdict due to lack of evidence connecting the injuries to the failure to inform the patient.

Background: In February 2007, an otolaryngologist performed an endoscopic sinus surgery on a patient suffering from chronic sinusitis. The physician placed a dural patch to reinforce the patient’s bone after noticing significant thinning of a bone in the patient’s sinus cavity. After surgery, the patient complained about losing her sense of smell and taste. Shortly after, the patient underwent a second surgery from a different physician to drain a mucus-filled cyst in the sinus cavity and to repair the area where the other physician applied the dural patch.

The patient claimed to have suffered permanent loss of taste and smell caused by the surgeries. After the second surgery, the patient brought a malpractice lawsuit against the initial physician, alleging the physician breached her duty of care in the preoperative care unit during and after the operation. Specifically, the patient alleged the physician departed from accepted medical practices by suggesting the patient undergo a functional endoscopic sinus surgery, and the patch had caused the patient’s injuries.

The defendant physician denied liability, alleging the patch was necessary to reinforce the patient’s weakened bone. The physician did not dispute that she failed to inform the patient of the patch, but argued the failure to inform did not cause any injuries.

A jury found the physician had not breached her duty of care in the patient’s preoperative care, had adequately informed the patient as to the risks and benefits of the surgery, had obtained informed consent from the patient, and had performed the surgery in accordance with the accepted medical standard. However, the jury found the physician departed from the accepted medical practice in failing to inform the patient of the insertion of the dural patch. Furthermore, the jury found the physician was negligent in explaining the necessary postoperative care. According to the jury, these breaches caused the patient to suffer injury requiring a second surgery. In particular, the physician did not advise the patient to stay on bed rest after the surgery to allow the dural patch to properly heal into place.

Because of the physician’s failure to adequately inform the patient about postoperative care, the patient did not remain in bed and the movement dislodged the patch, causing the cyst and the subsequent injuries to the patient’s senses. The jury returned an award in favor of the patient for $1.1 million. The defendant appealed.

The appellate court vacated the judgment, noting no evidence had been presented during the trial to support a verdict for the plaintiff. Specifically, the appellate court explained while the physician was negligent in the postoperative care instructions, the patient failed to present any evidence the dural patch had shifted post-surgery, causing the patient’s injuries. Additionally, although the patient argued the physician should have ordered a CT scan after the surgery, there was no evidence the outcome would have been any better for the patient. As such, the decision was reversed and the award vacated.

What this means to you: This case demonstrates the importance of carefully preparing one’s argument and presenting the evidence to support necessary findings. Another interesting lesson from this case is on the basic elements of medical malpractice: Even in the face of an undisputed breach of the standard of care, medical malpractice liability is not guaranteed. A breach of the standard of care is only one element. Here, the physician did not dispute that element — she acknowledged she failed to inform the patient about the placement of the patch — but instead focused the challenge on other necessary elements, including causation. Medical malpractice only arises if a physician breaches a duty and that breach is a substantial factor in causing a patient’s harm. Thus, if a patient suffers no harm, or if some other event causes the harm, the physician bears no liability.

Although the plaintiffs tried to argue the physician breached the medically accepted standard throughout the treatment, the lower court jury found the only breach occurred after the surgery, when the physician failed to inform the patient of the dural patch and provide postoperative care instructions. Physicians and care providers are required to provide clear details of findings and care provided during surgery. Any implanted materials must be disclosed to a patient, and the information about the implant, including registration or lot numbers, should be given to the patient and documented in the patient’s records. Discharge instructions also should be documented as received and understood by the patient. The patient’s expert opined that after the surgery, the physician should have given the patient written instructions specifying the patient should be confined to bed rest to avoid dislocation of the patch.

However, the appellate court noted the patient never presented evidence showing the patch had shifted, thus causing the injury. Without such evidence, the patient failed to satisfy her burden of proving the case. In this case, the court reiterated the patient’s expert will not need to quantify the degree to which the negligence contributed to the injury, but it would be sufficient to present evidence that would lead a jury to infer the physician’s conduct reduced the patient’s chances of a better outcome and increased the patient’s injury.

Based on this standard, the patient completely failed to show how the physician’s not advising the patient as to the dural patch or the required bed rest caused the patient’s loss of smell and taste, caused the mucus-filled cyst, and required the second surgery. Instead, the patient focused on presenting evidence that would support a finding of negligence during the preoperative care and the surgery itself. The jury rejected both arguments, finding the physician was not negligent before or during the surgery. Because the patient brought the medical malpractice action alleging several breaches, the evidence focused on proving the injury and failed to address how each alleged breach caused the injury.

The patient’s failure in this case proved fortunate for the defendant physicians, and serves as a lesson for clinicians. This is particularly true when a patient takes a “shotgun” approach to medical malpractice liability: This patient did not pinpoint the purported negligent action, and instead broadly alleged the physician breached at times before, during, and after the surgery. Clinicians should evaluate such broad claims with particular scrutiny, as it may indicate general weaknesses in the patient’s case. Undermining each alleged breach and disconnecting those from any purported injuries can be a successful method for achieving a defense verdict.


  • Decided July 1, 2020, in the Supreme Court of the State of New York Appellate Division, Second Judicial Department, Case Number 2017-03518 801/12.