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Medical Malpractice/damage nerve and unilateral diaphram paralysis

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QUESTION: i had a mediastinal mass removed in DEC 2013, and when i got home i was very short of breath cold and flu symptons.. hurting in the right lung and was very weak, went to see primary care and found i had pneumonia and elevated diaphragm.. took almost 4 weeks and 2 treatments to get rid of it.I also experience several weeks of upper respiratory infections..i have experienced shortness of breath and a raspy voice..   i am a professional singer and independent gospel recording artist and minister of music.. the surgeon did not explain to me the injury of a damaged nerve and paralysis of the diaphragm until 4 months into my recovery.. he said he would refer me to a pulmonary specialist and then if the problem is not corrected i would need surgery.. i have suffered quite a bit and it is very difficult for me to sing like i used to..i have not been able to schedule studio time because my lungs are not strong enough to record and do my best.   i am just wondering if i have a case here.. because i am having to see more physicians and possible surgery again.. thanks for your time

ANSWER: Dorothy:  You have  not provided nearly enough information for me to venture a guess whether the surgery was done negligently.  How big was the mass?  Was kind of mass was it?  Was it malignant? If the mass was of the dangerous type (cancer) then I am sure you would agree that the surgeon would have to be more aggressive to make sure that it was all removed, even it to do so might cause other damage. I also presume the surgeon knew how important your voice was and no doubt told you he/she would do the best possible job to not harm your voice.  What if he went in there and didn't do a thorough enough surgery in order to save your voice but as a result, the cancer spread and now threatened your life?  Imagine that?  Unless the mass you had was of no danger to you and the surgery was almost elective and he went ahead anyways and damaged your voice, that might be a malpractice case.  But obviously, your life is more important than your voice and what good is the voice without a life behind it?

The fact that you had some temporary complications following the surgery is of no consequence in regards to malpractice.  He never guaranteed you nor could he have guaranteed that you would be fine with no residual problems following the surgery. That is part of the "recovery" that you knew you would have, correct? The fact that you were not told about a nerve injury for 4 months doesn't tell us anything.  Most likely the surgeon didn't know the nerve was damaged until you showed signs of it 4 months later.  It's not likely he intentionally or knowingly sliced through a big shoelaced size nerve....... and many times nerve injuries suffered during surgery repair themselves.

Finally, surgical malpractice legal cases are very very difficult, very very strongly defended, very very expensive for the plaintiff to prosecute, and no lawyer would take interest or take the risk unless the damages were permanent and very high.  Being a professional singer, maybe your damages would be that high but on the other hand, maybe the follow up surgery would be of big help and thereby greatly reduce any such damages.........let's hope. Good luck.  Bottom line:  no case unless you can find another surgeon who would say something such as "What the heck was Dorothy's surgeon thinking?  This surgery was done completely wrong (or never should have been done) and if he followed proper procedure Dorothy would have never had a problem with her voice as a result.  The damage to her voice is permanent as a result".  See how unlikely it would be that other surgeons would say something like that?



---------- FOLLOW-UP ----------

QUESTION: thanks for your reply and a very good one at that... the mass was a 7mm parathryoid tumor in the Thymus it was not cancerous but was neccessary to remove because of my parathyroid levels and calcium levels being critical..the whole thymus was removed.. the follow up chest xray the day of surgery did show elevated diaphram and i had at least 2 or 3 visits and did not see the surgeon, but his PA on those visits and then in April of this year is when he sat me down and looked at the xrays and told me during surgery he hit the nerve and closed my lung up.  that's how he explained it to me, said he doesn't think he cut it but they will grow back and if not i would require a surgery to go in and pull the diaphram down so the lungs could expand.. only found out that is was paralysis from my primary cares notes and the PA told me what it was.. i thought i had a collapsed lung all that time...but anyway..yes i thank God i am alive..I just feel it is unfair for me to go through another surgery and through the pain and suffering and singing is my life...when i go to perform i want to be at my best not gasping for breath. thanks for your time and your answers.. greatly appreciated.

Answer
Dorothy:  If you google "elevated diaphram" (I had never heard of it before) you will see that it can be caused by many things including a mass, cyst, or DAMAGE TO PHRENIC NERVE, and other causes.  So, for sake of discussion, let's assume your lungs/diaphram became elevated because of damage during surgery to the phrenic nerve. Then we must ask "was it below the standard of surgical care to cause damage to Dorothy's phrenic nerve such that no reasonably competent surgeon would have allowed this to happen and this was the cause of Dorothy's elevated diaphram, not the underlying mass or cyst, and.......it can't be repaired". If another surgeon would say this, that would be the basis for a malpractice suit.  Of course, I fully expect that in such a lawsuit the defendant surgeon would have his own expect that would say something like that: "The elevated diaphram was developing prior to the surgery and explains some of the patient's pre-surgical symptoms.  The surgery and surgery technique were WELL WITHING THE STANDARD OF CARE.  Damage to the phrenic nerve are not the sole cause (or no cause at all) for the elevated diaphram and in any event, surgical damage to the nerve is a known risk of the surgery that occurs even when the best surgery is performed.  Therefore, although the complication of the elevated diaphram was unfortunate, it is not evidence of malpractice."

This is what your case would be up against.  I understand how you feel it would be "unfair" for you to have to go through more surgery.  Heck, it's unfair that you had to have the first surgery.  But we don't know at all that the second surgery is necessary ONLY because the surgeon made a bad mistake in the first surgery.  Most likely just "luck of the draw".  Not every surgery goes according to plan or the hopes and prayers of the the doctor and patient. Just because matters become more complicated doesn't mean it was the doctor's fault.   A malpractice case requires very strong medical consensus that something was done very very wrong, not just that the results were not as hoped.  And, the damages need to be severe and permanent.  Hopefully you will not qualify on that basis.

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Glenn A. Dorfman

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Thirty-four years experience in personal injury, medical malpractice and medical product liability law. Qualified to answer all questions regarding injuries and the law, except for worker`s compensation. Also wide experience in medical product defect cases ie current litigation regarding the Johnson&Johnson (DePuy)defective hip implant cases and Mirena IUD issues

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Thirty-four years experience handling cases involving auto accidents, trips and fall, fires, dog bite,medical malpractice and defective medical product cases with particular emphasis in 2012 and beyond with the DePuy ASR (Johnson&Johnson) defective hip implant cases. Twenty-five years of experience with defective IUD issues as well

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Jurisdoctor Degree 1976 and Member in good standing with CA State Bar Assoc. since 1976

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