Sample Case Evaluation Reports - Otorhinolaryngology/ENT Surgery Expert Witness



Please click on the titles below to go to the corresponding sample Case Evaluation Reports.

Cancer Operation Removes a Neck Muscle. A Few Years later another Doctor Claims to Cut it, but Instead Cuts a Deeper Muscle and Nerve to Her Voice Box and Breathing Muscle.

At age 33, this patient had cancer of her tongue excised on 12/28/94 along with a “ left modified radical neck dissection” “…and sternocleidomastoid (muscle) were preserved.” All the lymph nodes on that left side were free of cancer.

On 5/29/95, she delivered a healthy baby at 35 weeks gestation.

On 1/9/96, Dr. V, a Plastic Surgeon, and his resident, Dr. U, revised the thickened scar with the “Z-plasty” method of rearranging the skin flaps. That was successful. On this side her vagus nerve (which branches to the larynx and controls sensation and vocal cord function via the superior and recurrent laryngeal nerves) and the phrenic nerve, which controls the diaphragm motion for breathing on that side, were protected by the intact and overlying sternomastoid muscle. On that date Dr. K also performed a direct laryngoscopy viewing her vocal cords and noted, “There was no evidence of any pathologic process involving the cords.” That consent form for the neck scar revision did not mention any risk of nerve damage.

Because of a right-sided neck mass, she underwent surgery on 10/24/97 by Dr. K. He excised the mass from the right sternocleidomastoid (same as sternomastoid) muscle. This was metastatic cancer. Therefore he correctly performed a “right radical neck dissection.” He said “we divided the right internal jugular vein and the sternocleidomastoid muscle. We then went ahead and dissected the specimen caudally (cut it out by separating it from the adjacent flesh in the chest direction). The right phrenic nerve was identified and we were able to successfully stay above the fascia (fibrous muscle cover) plane and preserve it all the time.” There is no question about his removal of the mass (bulk) in her records at the Hospital where she had all her surgical care.

The pathology report noted the neck specimen to be a 6.5 x 4 x 3.5 mass as well as a 21.5 x 6 x 2.5 cm (one inch = 2.54 cm) dissection.

The consent form noted a risk of “damage to vocal cords.” She did not develop that damage from this indicated major operation.

Because of the increased risk of recurrence of cancer in her neck, she underwent a complete course of radiation therapy from 11/26/97 - 1/15/98. That would cause even more scarring and thickening of the flesh.

Because of the spasms in her right neck that the Radiation Oncologists felt “is on account of tight contracture along the anterior border of the trapezius muscle (side and back of the neck/shoulder region), a surgical “release” was to be considered. No antispasm injections were apparently done. This would include a steroid and local anesthetic injection as well as Botox, which causes flaccidity in an injected muscle for months.

On 1/22/99, the Radiation Oncologist, Dr. R, noted: “Vocal cords and aretynoid (larynx cartilage) are smooth and with symmetrical movement.”

On 8/17/99, “No evidence of upper airway stridor, loss of voice, or trouble swallowing prior to exam” as noted in her Emergency Room visit for fever and a skin rash.

On 11/22/99, Dr. R noted: “The vocal cords were freely movable.”

On 5/19/00 he again noted: “Vocal cords are mobile.” Her neck spasms were worse and she also had pain in her right shoulder.

Dr. V noted: “Right now she has very significant scarring and contracture in her right sternocleidomastoid muscle.” He said: “I think we can address all of these by doing 1) a stairstep incision on the SCM (sternocleidomastoid muscle), 2) Z-plasty of her incisions in her neck…..” But she had NO right SCM muscle. If he would have read the operative report and pathology report as he should have, it would be obvious. She could not give proper informed consent for a risk that was multiplied many times from his negligence.

On 6/26/00, Dr. V, Dr. A and Dr. M (who dictated that report, which implies he actually did the surgery under supervision) all performed negligently. They claim: “after informed consent was given,” but that was not possible. Then “Three 2.5 cm (one inch) transverse incisions were made at the upper, mid, and lower portions of the sternocleidomastoid. Dissection (separation of flesh) was carried down to the level of the sternocleidomastoid and the resultant scar tissue was sharply incised (cut) and the sternocleidomastoid was freed from surrounding structures (impossible).

Due to the severe irradiation change several areas of the fibrotic sternocleidomastoid were divided near completely (again impossible).” They were too deep and cutting into the scalene anticus muscle and cut the phrenic nerve to the diaphragm on that side, and cut the vagus nerve above the larynx thus preventing nerve transmission to and from the superior and recurrent laryngeal nerves.

No electrical nerve stimulator was used, which would have aided the protection of those nerves, but without ever reading the previous operative report, they were operating “blind” in scar tissue from the previous operation and radiation therapy. They had no “roadmap,” which was available. Also an MRI would have shown them that the SCM muscle was already gone. These Plastic Surgeons were all negligent, as was their employer the Hospital.

Dr. V, in a progress note, wrote: “I was present for key parts (? handwriting) of case.” He was also fully responsible for the negligence and markedly increased her risk of right vocal cord and right hemidiaphragm paralysis (that caused her to have impaired breathing power and poorer cough, increasing her future risks of pneumonia).

The Consent Form she signed did not give them permission to operate on the SCM muscle and therefore some would also consider this Assault and Battery, as well as Breach of Contract.

On 7/25/00 Dr. V noted that: “she has some hoarseness that has remained for the past month.”

The ENT Surgeon, Dr. S, saw her on 8/4/00 and noted: “On June 26 of this year she underwent a release of the sternocleidomastoid muscle contractions with three complete incisions at three levels, completely dividing the muscle…. Since that surgery, she has had problems with shortness of breath, especially with ambulation (walking). She has problems with coughing spells and occasional aspiration (food in the windpipe and lungs) of thin liquids. Her voice is breathy and she is unable to enunciate several word at a time due to the breathiness of her voice.”

His examination noted: “She has classic right true vocal cord paralysis with the cord being in the paramedian position. She is unable to over adduct the left true vocal cord, leaving a chink posteriorly on attempted phonation (speaking).” He said: “I suspect that there may have been trauma to the vagus nerve at the time of the release of her sternocleidomastoid contractions due to the temporal relationship of her symptoms and the surgery.” I agree.

Her aspiration he related “to her vocal cord paralysis.” I agree. Also, the nerve damage does cause some numbness in her larynx. And impairment of the laryngeal muscles that help protect the airway from the passage of food (aspiration).

The chest x-rays of 8/30/00 and 11/8/00 show “chronic elevation of the right hemidiaphragm,” and that was from the negligent injury to her phrenic nerve, which appears to be permanent.

Has she had any pulmonary (lung) function tests to see how impaired her ventilation and lung function is?

On 11/10/00, Dr. F also diagnosed “Severe GE (gastroesophegeal) reflux disease.” The vagus nerves also control the emptying of the stomach into the small intestine. Has she had any UGI x-ray contrast studies to evaluate her stomach emptying function? It would be unusual to have impairment with only one vagus nerve severed, but with decrease emptying, it could force more food and acid up the esophagus, especially if she had an hiatal hernia. But their negligence “took her as they found her.”

I would suggest that the Medical Review Foundation, Inc. obtain Board Certified Medical Experts in Plastic Surgery and Head and Neck Surgery (this is done by some ENT and Plastic Surgeons). We await your authorization.

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Premature removal of a neck lymph node and irreversible spinal accessory nerve damage with trapezius muscle paralysis.

This case poses two questions: 1) Was the operation indicated? 2) Was it properly performed?

When a patient presents with an enlarged lymph node (bacterial filter of bodily fluids), a number of questions must be resolved before any operation takes place. In the hospital records it states: "Two enlarged lymph nodes - right side of neck - Noted two days ago." The checklist for physical examination says everything is normal on that "Short Form History and Physical Examination," except "two enlarged lymph nodes."

When and where did that complete physical examination by the Surgeon take place, including listening to his heart and lungs, feeling his abdomen, doing a rectal examination, examining his eyes, ears, nose and throat, etc?

First of all, the preoperative diagnosis on the Hospital #1 operative report says, "To rule out lymphoma" (cancer of the lymph system which includes all the lymph nodes of the body and spleen which can significantly enlarge). That is one reason a complete physical examination, including feeling for enlarged abdominal organs including the spleen is mandatory, and feeling in both inguinal (upper leg / groin) areas and axillae (armpits) for enlarged lymph nodes and a complete examination of the nose, mouth and throat for any signs of cancer must be done first.

The Surgeon's office notes are negligently deficient in that they only say: "Ref. Dr. #1 (obtain all of their medical records for this patient), 9/2. Complaint two lumps of neck; two lymph nodes right side of neck, Sept 9 (date for surgery)." Where in the neck? The anterior or posterior triangle? What size lymph nodes? Mobile or fixed? Tender or nontender? Any history of recent head, throat or ear infection that can usually cause a temporary enlargement of lymph nodes?

Thus, the medical history and physical examination are negligently grossly deficient.

Next, what is the result of the Complete Blood Count (CBC) and differential smear to look for infection, cancer of the blood (leukemia, etc.) and allergies? The failure to do it and note its results is also negligent.

One of the standard evaluations when considering a "lymphoma" is a chest x-ray to look for enlarged lymph nodes in the central area of the chest. The failure to obtain that study and note its results is further negligence.

He noted that the patient had insurance, thus he would get paid for this grossly premature operation, especially since the patient only noted the lymph node enlargement for two days! That alone should cause it to be evaluated over one or two months, if all of the studies he never did were all negative, including a skin test for TB (tuberculosis), which can also cause an enlarged lymph node!

Depending what the referring Physician did or did not do in this evaluation, their premature referral to a Surgeon is negligent, too. What was their purpose for the referral: For a thorough "work up," or to have it cut out and sent to the pathologist? How was their referral information given to the Surgeon: In writing, or by the patient making an appointment and showing up at the Surgeon's office? What is their pattern and practice with referrals to this Surgeon?

Therefore, performing this operation at that time was negligent for all the reasons stated above.

The "operation" was performed under local anesthesia, which is the anesthesia of choice for this procedure. The patient was 5'11" and weighed 240 pounds. Obtain photographs that show his neck prior to the operation. If his weight is the same now, note that and in any event, take photographs now that show his neck and shoulders, the incision, and muscle loss from the negligently cut or irreversibly damaged spinal accessory nerve.

That "jolt" the patient felt was the nerve, which is the size of a paper matchstick, being damaged. Where in his body did he feel that sensation and describe that sensation in more detail. The "operation" took 16 minutes from start to finish. At what point, from the start of the local anesthetic injection until the last skin suture was placed, did he feel that "jolt?"

An electrocautery (electrosurgery) unit #F3D21276T was used in Room #2 on 9/9 Obtain the hospital maintenance and repair record for that device to be sure it was properly maintained and not in an unsafe condition at that time.

The Surgeon, Dr. #2, said: "The lymph node was found. Meticulous dissection (separating layers of flesh) was performed. The lymph node removed completely. After the removal of the lymph node, bleeders were electrocoagulated."

In doing this operation, the spinal accessory nerve must not be cut or injured. It must not be burned (fried) by the electrocautery to "control bleeders." If there is any question, an electrical nerve stimulator can easily be used in this awake patient to "look" before tearing, cutting, or burning flesh grasped in a hemostat (locking needle nose pliers device). This is a preventable injury since there was no previous surgery at that site to entrap the nerve in a mass of scar tissue.

The Pathologist noted that the specimen "consists of a tan and red, firm tissue fragment measuring 1.5 x 1.0 x 0.4 centimeters (2.5 centimeters = one inch)." Their microscopic diagnosis was "Chronic lymphadenitis (right neck)." That is not cancer or tuberculosis, and is commonly seen after a previous infection and usually decreases in size over weeks. That means observation (while doing the basic detailed examination with details recorded, the chest x-ray and laboratory tests, and possibly an MRI or CT scan of the neck) would allow it to shrink in size "from whence it came" and therefore allow more watching. Cancer grows. Inflammation (lymphangitis) most often resolves, when the stimulus (infection) is resolved.

What was the patient told to get him to go into the operating room seven days after seeing this negligent and negligently aggressive Surgeon? What did the referring Doctor do in his office, and say to the patient?

Five months later, the electromyogram (EMG: electrical muscle test) and motor nerve study showed "persistent incomplete right spinal accessory nerve injury." When that muscle atrophies (shrinks) from inadequate nerve stimulation, there usually is weakness of the trapezius muscle on that side, and there can be an outward bulging of the scapula ("winged" shoulder blade).

This is a known and preventable complication with proper skill and care, as I noted above.

I do not believe the radial nerve injury, which is anticipated to improve, is related to this operation.

What is the training and Board Certification of the Surgeon, if any? Has he ever failed that examination? Has he been recertified? How does he advertise himself in the Yellow Pages, on his office door and office cards?

If the electrocautery unit was defective and not properly maintained, then the hospital is also liable. If the surgeon is not properly credentialed, or if he has had significant problems with his skill and care, then the hospital is also liable.

Obtain a current EMG and motor nerve study.

Obtain answers to all the above questions.

The Surgeon is negligent for his failings in the two questions I posed above.

The referring Doctor and their office may also be negligent, depending on the answers to my questions and concerns.

With all that information I suggest that I first do an Addendum Report, and then have us arrange for review by Experts in General Surgery, Oto-Rhino-Laryngology (ENT Surgery), Oncology (with regard to the proper evaluation for a patient suspected of having a lymphoma cancer) and Infectious Diseases.

Then have the patient evaluated by a local Clinical Psychologist with courtroom experience, who can examine and test him for any emotional damages relating to this negligent and abusive care.

I wonder if the patient would have been rushed into the operating room with such haste if he did not have adequate insurance to pay the Surgeon?

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