Donohue Brown’s Rick Foster, Tim Hogan and Amanda Balen successfully defended an ENT surgeon against a claim of a mishandled tonsillectomy after nine years of litigation and a two-week trial.
The plaintiff was a 30-year-old woman who had a tonsillectomy performed by the defendant in 2006. Although the procedure was uncomplicated and lasted 13 minutes, the plaintiff claimed following the surgery she had impaired speech, difficulty swallowing, breathing problems and a change in the pitch of her voice.
The plaintiff’s lawyer said she sustained damage to five different cranial nerves, predominantly those that govern the tongue and swallowing control. Her lawyer described the speech impediment as a “Tweety Bird accent” in a reference to the Bugs Bunny character that replaced the letter R with the letter W when it spoke.
DBMS’s request for access to the counseling records of multiple specialists was denied based upon mental health privilege, despite the defense claim that the plaintiff had placed her mental condition in issue when one of her experts claimed that she had become severely depressed as a result of her speech impairment. DBMS eventually persuaded the judge to release records showing the plaintiff suffered from anxiety, panic attacks and depression.
According to DBMS experts, the plaintiff’s issue was psychogenic rather than neurogenic. This was solidified in a video examination shown in court of the plaintiff by a speech pathologist. The video demonstrated inconsistencies in the plaintiff’s articulatory pattern, which was quite persuasive for the jury, because if there was a nerve injury there would be a consistent pattern of generalized impairment.
The plaintiff asked for $1 million for loss of normal life and an unspecified amount for pain and suffering, however the jury returned a not guilty verdict in an hour.