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ARTICLE ID 157699

$________ GROSS Neurosurgical malpractice - Open resection of brain performed without mentioning option of needle biopsy- Patient allegedly misdiagnosed with brain tumor that did not exist - Defendant disputes negligence and informed consent violation claims.

Camden County, NJ

The plaintiff, a man in his 50s, contended that he had a difficult time getting a diagnosis for his multiple sclerosis, and was finally told by the defendant neurosurgeon that he had an advanced brain tumor requiring brain surgery. The plaintiff underwent an open resection of his brain whereupon it was discovered that there was no tumor. The plaintiff filed suit against the defendant neurosurgeon for negligence and failure to obtain his informed consent. The defendant countered that the open resection was the proper procedure given the plaintiff’s situation.

The evidence revealed that the plaintiff went to his family doctor complaining of numbness and tingling on one side of his body. The family physician allegedly did not feel it was a matter of concern. The plaintiff’s wife insisted he see a neurologist and he presented to a neurologist. The neurologist hospitalized the plaintiff, suggesting he could have possibly suffered a stroke or have a tumor. A CT scan gave no definitive answers and the defendant neurosurgeon was brought into the case. The defendant allegedly opined that the plaintiff had an advanced brain tumor, that without surgery, he had eighteen months to live, and that he must be operated on immediately. The plaintiff consented and the neurosurgeon performed an open resection. No brain tumor was found.

The plaintiff claimed in court that the defendant did not tell him that a needle biopsy was an option given his supposed condition. Allegedly, the hospital where the plaintiff was a patient had lost its needle biopsy capacity when the physician’s group who owned the equipment had left and taken the equipment. The equipment had allegedly not been replaced.

The plaintiff maintained that after the surgery, he began to develop severe problems including deep vein thromboses, seizures and the inability to speak beyond a couple of words. After eight to nine months, he was diagnosed by another medical center as having multiple sclerosis. Since that time, the plaintiff’s condition has continued to worsen and the plaintiff is currently wheelchair bound and in need of 24-hour care by his wife.

Plaintiff’s counsel contended that the defendant was guilty of negligence and failing to obtain his informed consent. The defense maintained that the open resection had been the correct procedure because a needle biopsy would not have given the neurosurgeon the option to debulk the suspected tumor. The defendant also maintained that the plaintiff’s injuries were due to his multiple sclerosis and not the actions of the defendant. The plaintiff presented the testimony of a multiple sclerosis expert, a neurosurgeon, a life care planner and an economist while the defense presented experts in multiple sclerosis and neurosurgery.

The judge instructed that the jury was to determine if a reasonable person would still have consented to the procedure knowing that a needle biopsy was another option. The jury was also to decide on negligence. While the jury was out, the defendant offered the plaintiff $________, which was turned down by plaintiff’s counsel. The jury, which deliberated for one and a half days, decided that the defendant had not been negligent in the performance of the surgery, but had the plaintiff given the option of a needle biopsy, he would not have undergone the open resection. With the yes vote on the defendant violating the plaintiff’s right to informed consent, they awarded him $________, but reduced it by 60% saying that he would have had his medical problems anyway. The amount of the award plus interest was approximately $________ and the parties agreed to that amount, which was the defendant’s insurance policy limit.

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