Facts

On June 28, 2004, plaintiff Lindsey Kalal, a 64-year-old male real estate broker/real property manager, presented to Dr. Michael Fenn, an ENT surgeon with complaints of persistent cough, difficulty breathing through his nose, post-nasal drip and hoarseness. The plaintiff's pre-operative diagnoses were deviated nasal septum, allergic rhinitis, bilateral chronic inferior turbinate, hypertrophy, and recurrent septal epistaxis. Dr. Fenn recommended a septoplasty and bilateral KTP laser turbinoplasty procedure to which the plaintiff agreed.

On July 30, 2004, the plaintiff presented to Sharp Coronado Hospital for the procedure. Prior to the procedure, the plaintiff stated that he had reservations about general anesthesia and had spoken with Dr. Fenn about using local anesthesia. After discussion between Dr. Fenn, Dr. Roger Barnes, an anesthesiologist and the plaintiff, it was agreed to begin the procedure with local anesthesia, but that a conversion to general anesthesia would be done, if necessary, to safely complete the procedure. The surgery was first attempted utilizing a local anesthetic; however, the plaintiff was unable to tolerate the procedure due to bleeding and suboptimal surgical conditions. The plaintiff was converted from local anesthesia to general anesthesia and the turbinoplasty was completed with the plaintiff being returned to the recovery room in a stable condition. The patient was discharged from the hospital that same day.

The plaintiff was admitted to Sharp Coronado Hospital on Aug. 2, 2004 with urinary retention and a post-operative ileus. Over the next few days, his kidney function stabilized, and his bowel function improved such that he was discharged on Aug. 7, 2004.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that in all pre-operative communications, he consistently advised the surgeon and the anesthesiologist that he was not to be given general anesthesia under any circumstance. He asserted that Dr. Fenn had assured him that he could do this procedure under local anesthesia, and accordingly, he would not authorize general anesthesia unless "something went tragically wrong," in which case general anesthesia would be authorized. The plaintiff was ultimately given general anesthesia during the surgery even though there was no catastrophic event. He claimed to have suffered an ileus injury for one to two weeks, urinary incontinence for at least 30 days, shortness of breath symptoms and a generalized debilitated condition, which was ongoing.

DEFENDANT'S CONTENTIONS:
Dr. Roger Barnes presented evidence at trial that he met with the patient for a pre-operative anesthesia evaluation immediately before surgery. During the consultation, the patient stated he had reservations about general anesthesia and that he had spoken with Dr. Fenn about using local anesthesia. Dr. Barnes explained that general anesthesia was typically used, because, in his experience, it is difficult to control bleeding using only local anesthesia. After a discussion among Dr. Fenn, Dr. Barnes and the plaintiff, it was agreed to begin the procedure with local anesthesia, but that a conversion to general anesthesia would be done if necessary to safely complete the procedure. Immediately thereafter, Dr. Barnes recorded an anesthesiology note in the Sharp Coronado Hospital record that he had "discussed local/sedation (which patient prefers), possible general anesthesia. He accepts plans, procedures and risks." The procedure was first attempted utilizing a local anesthetic; however, the plaintiff was unable to tolerate the procedure due to bleeding and suboptimal surgical conditions. The plaintiff was appropriately converted from local anesthesia to general anesthesia and the procedure was completed without incident.

Dr. Barnes contended that all anesthesia services provided for the July 30, 2004 procedure conformed with applicable standard of care. In fact, there were no criticisms of Dr. Barnes as far as the anesthetic technique with the dosages of local with sedation and general anesthesia and the actual conversion from local with sedation to general anesthesia. The only criticism rendered by plaintiff's anesthesiology expert was that Dr. Barnes should have told the patient that there was a "high likelihood" that the procedure would need to be converted from local with sedation to general anesthesia. Dr. Barnes contended that there was only a possibility that the procedure would need general anesthesia. Lastly, Dr. Barnes asserted that the plaintiff could not establish with a reasonable degree of medical probability that the post-operative complications were caused by the general anesthesia as opposed to the local anesthesia or the narcotics used both during and immediately after surgery.

Settlement Discussions

The plaintiff made no demand. The defendant made a C.C.P. Section 998 offer for a waiver of costs and malicious prosecution rights.

Specials in Evidence

$150,000 to $180,000

Damages

The plaintiff asked for $150,000 (economic damages) and unspecified general damages.

Injuries

Post-operative ileus, urinary retention/overflow incontinence, shortness of breath, generalized fatigue and debilitative condition.

Deliberation

45 minutes

Poll

11-1 (standard of care)

Length

six days