A 34-year-old man developed a cholesteatoma of the inner ear and presented to his ENT surgeon. If these benign tumors aren't cared for and treated, they can destroy the bones of hearing as they grow, especially when the ear is infected or if water gets into the middle ear with other infections. They can also lead to brain abscess. You need a surgical microscope to properly inspect and cleanse a cholesteatoma, especially when there is infection. One of the known risks associated with this procedure is injury to the facial nerve.

The surgeon diagnosed the cholesteatoma and ordered a CT scan, Pred Forte eardrops and a follow-up in two weeks. The CT revealed the growth's massive size. The surgeon urged the man to have surgery as soon as possible and charted that he'd advised the patient that delaying surgery could increase the risk of harm. The surgeon explained the procedure involved a microscope and, due to the size of the cholesteatoma, complications were possible, such as bleeding, infection, injury and damage to the veins, arteries, nerves and organs of the inner ear. The alternative would be to do nothing and run the risk of hearing loss. The patient couldn't take time from work to have the procedure and waited for vacation (four months later) to have the surgery.

Before surgery, a CT scan revealed noticeable growth of the cholesteatoma and the ENT secured the patient's consent for the procedure. During the procedure, the surgeon injured the facial nerve. The patient received immediate surgery to try to repair the nerve, but the injury resulted in a permanent facial paralysis on the right side of his face.

Opening arguments
Mrs. Smith (plaintiff): The defendant's surgical technique is below the standard of care. The surgeon knew or should have known that the cholesteatoma was large and that the anatomy of the ear would have been somewhat distorted. To mitigate the risk of harm, the surgeon is required to dissect and identify the facial nerve remote from the cholesteatoma and to follow that nerve to the area of the debridement. The surgeon failed to do this and his conduct increased the risk of harm to the patient. Rather than identifying the nerve, the surgeon carelessly debrided and severed the facial nerve.

Mr. Smith (defense): Not true. It's standard practice for the surgeon to use the anatomical landmarks in an effort to discern the location of the facial nerve. In this case, the surgeon identified these landmarks and proceeded very carefully. It is wrong to suggest, especially in retrospect, that the surgeon should have dissected and followed the facial nerve remote from the procedure, as this would increase the risk of harm to the patient. It would be almost impossible to explain to anyone the justification for doing this if the surgeon encountered a complication.

Mrs. Smith: If the surgeon is justified in using the anatomical landmarks to guide the parameters of his procedure, then he should use all that is available to him to mitigate the risk of harm to the patient - in this case, intraoperative nerve monitors. The surgeon's failure to use this equipment fell below standard and increased the risk of harm to the patient. More than sufficient pre-op evidence suggested to the surgeon that the cholesteatoma was large enough to create abnormalities in the typical anatomical configuration. Plus, there are no contraindications to the use of this equipment.

Mr. Smith: To say there are no contraindications to the use of this equipment is false. According to many, the monitors aren't very helpful and many times they actually distract the surgeon. This case distills into a reasonable judgment call by the surgeon as to whether he employs the use of his equipment in connection with this surgery. It's his habit and custom not to use the equipment. His education, training and years of experience let him draw the reasonable conclusion that it would be safer for his patients if he didn't use the equipment. The surgeon didn't make a conscious effort to deny the patient the safest means of performing the procedure. It would be mere conjecture to suggest that the outcome would have been any different had the surgeon used the monitors. By the time the alarm sounds, more times than not, the damage to the nerve has been done. The patient has some culpability for this outcome. The surgeon essentially pleaded with the patient to have the surgery as soon as possible. The surgeon warned the patient that delay would increase the risk of harm, not only from the growth of the cholesteatoma but also in the sense that debridement would be that much more difficult.

Mrs. Smith: Very clever, Mr. Smith, but you seem to have overlooked one very important fact. It is undisputed that many surgeons believe that this equipment is helpful and may reduce the risk of harm to their patients. The problem with this case and your client's disposition is that he didn't discuss the use of intraoperative nerve monitors with my client. As you know, the plaintiff is a young married man with three children and the distortion of his face is going to have a tremendous impact on every conceivable aspect of his life. Your client should have discussed the availability of this equipment and why in his best judgment it was not indicated. Your client should have also advised him that some surgeons may feel differently about the use of this equipment and let my client decide whether to have the surgery with or without the monitors or with a surgeon who uses this equipment regularly. Your client's failure to inform the patient deprived him of an opportunity to make an informed decision.

Mr. Smith: Of course your client is saying this now, after the fact. It is undisputed that my client discussed the details of the procedure with the patient and the fact that there was a real concern with respect to complications. This was not an elective surgery. To suggest that the plaintiff, who had already delayed the procedure, would have second-guessed the manner in which the procedure was performed, in particular concerning the use of the equipment, is self-serving and convenient lawsuit testimony.

Jury finds for the plaintiff
The court didn't permit a charge to the jury for contributory or comparative negligence. The jury found for the plaintiff. Many jurors reported that the impetus of their decision was based on the consent rather than the competency or the technique of the surgeon. The jurors had a difficult time understanding the complexities of microsurgery and it was their expectation that the relatively young man shouldn't have sustained a permanent paralysis of his face. Many justified their opinion by the fact that the surgeon didn't advise the plaintiff of the availability of intra-operative nerve monitors and why it was his recommendation not to employ its use. The plaintiff argued, and the jury accepted the claim, that had he known of the availability of such a device, he would have asked the surgeon to use it or he would have gone to a physician who used the equipment regularly. Ultimately, from a medico-legal point of view, the jury believed that the defendant did himself a disservice by not fully informing the plaintiff of the alternative manners of performing the procedure.

If you're in a situation in which a procedure may or may not involve the use of intraoperative nerve monitors, it would be in your interest to discuss the details of your thoughts of such equipment before proceeding to surgery. A brief progress note to confirm your discussion is advisable.