Joon D. Chong v. Edgar J. Fernandez
Published: Mar. 19, 1994 | Result Date: Mar. 4, 1994 | Filing Date: Jan. 1, 1900 |Case number: 615699 – $0
Judge
Court
Orange Superior
Attorneys
Plaintiff
Defendant
Mark V. Franzen
(Carroll, Kelly, Trotter, Franzen, McBride & Peabody)
Experts
Plaintiff
Melvin A. Shiffman
(medical)
Defendant
Sanford Hepps
(medical)
Facts
On January 31, 1989, Plaintiff, a 35-year-old gardener, underwent an out-patient excisional posterior cervical triangle lymph node biopsy by the Defendant Edgar Fernandez, M.D., a general surgeon. The operative report did not identify the spinal accessory nerve and Dr. Fernandez testified that he did not see the nerve intraoperatively. In the immediate post-operative period, Plaintiff noticed weakness in the shoulder and upper back and complained of shoulder and arm pain. These symptoms were not relieved with steroidal injection. On April 11, 1989, the Plaintiff saw a neurosurgeon, Dr. John Kusske, who felt the spinal accessory nerve (11th cranial nerve) had been transected at the time of the surgery. Plaintiff was unable to perform the tasks of gardening, including heavy lifting. However, a subsequent EMG performed on June 26, 1989, confirmed that the nerve had not been transected. Plaintiff saw Dr. Dennis Malkasian, a neurosurgeon; he concluded that the Plaintiff had developed a neuropraxia from either a partial laceration of the spinal accessory nerve or a stretching of the nerve during the surgery by Dr. Fernandez. Although Plaintiff's symptomatology decreased and the trapezius muscle returned to full function, Plaintiff continued to complain of arm and shoulder pain.
Settlement Discussions
Defendant contends they made no offers and Plaintiff made a 998 demand of $25,000 at the time of trial.
Specials in Evidence
$2,000 uncollateralized $40-50,000
Injuries
Cervical compression and disc bulge at C3-4, C5-6 resulting in ongoing arm and shoulder pain.
Deliberation
2.5 hours
Poll
10-2
Length
4 days
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