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Hudson County

This was a medical malpractice action in which the male plaintiff, age 26 at the time, contended that the defendant family practitioner, who was using a syringe to irrigate the plaintiff’s left ear which had become clogged during vacation, causing discomfort and affecting his hearing, negligently failed to allow for drainage of the water used during the irrigation process, rupturing the tympanic membrane, fracturing the stapes and causing an inner ear fistula. The plaintiff contended that despite repair surgery, he will permanently suffer a 30% hearing loss in the ear, recurring episodes of vertigo and continual tinnitus. The repair surgery was performed approximately 1 1/2 years later, but there was no claim that any delay changed the course, which the plaintiff contended would have occurred upon the initial injury irrespective of the treatment then given.

The plaintiff related that after he returned home from vacation with a clogging sensation in his ear and some difficulties hearing, he visited the defendant, his family physician, who was a member of the defendant group. The defendant utilized a syringe containing a bulbous or olive-shaped tip during the irrigation.

The plaintiff contended that although acceptable, the utilization of such a bulbous tip requires additional care be used due to the risk of the tip obstructing the flow of water out of the ear during the irrigation process. The plaintiff’s expert maintained that the use of a slender tip, such as the type he utilizes in his practice, would obviate the hazard.

The plaintiff contended that during the irrigation, he suddenly heard a loud booming noise and simultaneously felt severe pain and nausea. The plaintiff’s expert contended that these signs reflected rupturing of the tympanic membrane and the fracturing of the stapes, which the plaintiff contended occurred during the irrigation and stemmed from the excess pressure of the water build-up, ultimately leading to the fistula. The plaintiff contended that he immediately developed vertigo, tinnitus and that his hearing was diminished. The plaintiff’s expert maintained that if the defendant had been sufficiently careful to avoid inserting the syringe too deeply and if he had placed it at an appropriate angle, the water would have been able to escape and the injuries would not have occurred. p 7 3 The defendant denied that the irrigation was performed improperly or that significant injury and the rupture occurred during the irrigation. The defendant’s expert contended that the literature reflected that a rupture would not occur during the performance of such an irrigation. The plaintiff countered that there was no evidence that the article referred to an irrigation device other than the slender tip type, arguing that the defendant’s position should be rejected.

The defendant further contended that a documented infection of the middle and inner ear caused the rupture a few days later and that such a complication occurred in the absence of negligence.

The evidence disclosed that when the plaintiff complained of the pain and heard the loud noise, the defendant immediately brought him to one of the ENT members of the group, who noted a small laceration in the outer area of the ear canal, which the defendant stressed, can occur in the absence of negligence. This ENT did not observe a perforation and prescribed antibiotic ear drops to prevent infection. The defendant contended that although this ENT did not observe any signs of impending infection, the excessive build-up of wax would be likely to cause the beginning of an infection and that when combined with the small laceration which occurred during the irrigation, culminated in the significant infection that caused the injuries, notwithstanding the use of antibiotics.

The evidence disclosed that later that night, the plaintiff visited the emergency room and the emergency room physician contended that he detected the perforation and instructed the plaintiff to visit an ENT the following day. The plaintiff returned to the group, saw the second ENT specialist, "Dr. C," and this physician, who did not believe that a perforation had occurred, did diagnose a middle ear infection and continued antibiotic therapy.

The plaintiff related that he continued to suffer severe pain, returned the following day and saw a third ENT physician, "Dr.

W." The plaintiff contended that this physician diagnosed the rupture and advised him that the only treatment would be to continue the antibiotics. The defendant denied that this physician had, in fact, detected a rupture and pointed to the absence of any mention of such finding in his records. The plaintiff countered that the defendant failed to produce this physician and argued that if the plaintiff’s testimony regarding advisements given by this physician were inaccurate, the defendant would have produced this physician to rebut the plaintiff’s factual testimony. The defendant countered that the plaintiff could have produced this doctor as well since he was under subpoena.

The plaintiff, who returned the following day, was seen again by Dr. C., who noted that the ear was entirely closed, that a rupture was possible and who advised the plaintiff to continue the antibiotic therapy and return in a few days. The plaintiff related that he then decided to seek a different group and saw the non-party subsequent treating ENT specialist four days later.

This physician diagnosed the large perforation and treated him conservatively for several months, ultimately resolving the peroration by cauterization. p 7 3 The plaintiff contended that his balance difficulties, hearing loss and tinnitus, which commenced immediately after the irrigation, have continued and that when the symptoms did not improve after a few months, the plaintiff was referred to the subsequent treating otolaryngologist with a subspecialty in balance disorders. This physician performed surgery and noted that in addition to the stapes having fractured, an inner ear fistula had also formed which he closed with a graft. The plaintiff contended that although the balance difficulties improved substantially, he continues to suffer episodes which last several weeks every few months. The plaintiff maintained that the episodes occur more frequently after significant exertion and sudden movement.

The plaintiff contended that he has been forced to give up favored activities such as jogging and working out and also maintained that he is very limited in the extent to which he can play with his daughter, age 2 1/2 at trial. The plaintiff’s wife was in her sixth month of pregnancy with their second child at the time of the trial. The plaintiff also contended that he continues to suffer constant tinnitus, which is extremely troublesome, as well as a 30% hearing loss in the ear. The plaintiff’s expert maintained that these symptoms are permanent in nature and would have developed to the same extent even if the rupture was immediately detected.

The plaintiff had also contended that the ENT physician who saw him on the day of the irrigation had deviated in failing to observe the perforation and prescribe antibiotics. The plaintiff’s experts conceded that the course of treatment would not have changed even if such antibiotics had been prescribed at the time and the plaintiff withdrew the claim against this physician.

The plaintiff, who works as a financial analyst, was able to return to work and made no income claims.

The jury found that the defendant family physician was causally negligent and awarded $________ and $________ in medical bills. The jury also declined to render a per quod award.

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