Facts

In February 1998, plaintiff Douglas O. Dees' primary care physician, Dr. Johnson determined that he had elevated calcium and parathyroid hormone levels indicative of a diagnosis of hyperparathyroidism, a disease of the parathyroid glands. Dr. Johnson referred Dees, 69, to general surgeon, Dr. Helmuth T. Billy for surgical evaluation and possible removal of a parathyroid tumor.

Dr. Billy initially saw Dees on March 4, 1998, at which time he diagnosed Dees with primary hyperparathyroidism and recommended a neck exploration, as 97-99 percent of abnormal parathyroid glands are located in, or accessible via, a neck incision, and removal of parathyroid tumor. Dr. Billy ordered a sestamibi scan in order to determine what part of the neck to commence the procedure. A sestamibi scan is a localizing study using a radionucleotide that is taken up by the thyroid and parathyroid glands and washes out over a period of time. If there is a location in the neck that remains after the radioactive dye has washed out from the thyroid gland, this "hot spot" suggests the location of the parathyroid tumor.

Dees underwent the sestamibi scan on March 7, 1998. The scan showed distribution of the dye to the thyroid gland and a collection in the chest of equal intensity to the thyroid gland that washed out at the same time as the thyroid gland. There were no residual "hot spots" to suggest parathyroid adenoma in the neck. The radiologist read the study as showing no evidence of parathyroid adenoma formation and interpreted the intensity in the chest to be substernal thyroid tissue.

Plaintiff and defense experts agreed that in 1998 the standard of care did not require a localization study to be performed prior to doing a neck exploration when there was a diagnosis of primary hyperparathyroidism.

Dr. Billy performed the neck exploration procedure on April 21, 1998 and removed 2½ parathyroid glands and substernal thyroid tissue. No parathyroid tumor was found during the neck exploration, and as such he determined the tumor was likely in the chest. The decision was made to close the patient and obtain consent for the chest procedure before further proceeding.

On April 29, 1998, Dees was admitted to Barton Memorial Hospital for treatment of "panic" calcium levels of 15.1 and 16.1. During this hospitalization, a CT scan of the chest was performed that showed a 2 cm x 2 cm tumor in the chest in the aortopulmonary window, that coincided with the location of updateke on the sestamibi scan. Dr. Billy initially recommended a thoracotomy and excision of the tumor. Dees, however, was reluctant to undergo an open procedure, and as such a thoracoscopy with a potential conversion to an open procedure was discussed over several months.

In August 1999, Dees agreed to the procedure, which was performed on Aug. 13, 1999. On Aug. 13, 1999, Dr. Billy, assisted by general surgeon Gregory Ginn, M.D., attempted the thoracoscopic procedure to remove the parathyroid tumor. The tumor was considerably larger than the 2 cm x 2 cm reported by CT and was densely adherent to all the surrounding structures, including the aorta. Dr. Billy and Dr. Ginn attempted to dissect the tumor away from the surrounding structures. The ligamentum arteriosum was on top of the tumor like a seat belt and in order to access the rest of the tumor, it was determined the ligamentum needed to be transected. The ligamentum was doubly clipped and then transected. After transection, the vessel began to bleed heavily, and after an initial attempt to control the bleeding with clips, the procedure was converted to an open procedure. The bleeding was controlled and the procedure continued. The tumor was visualized and again noted to be very abnormal in that it was adherent to surrounding structures as well as fungating. It appeared to be approximately 7 cm in size. Over a period of several hours, Dr. Billy and Dr. Ginn dissected the tumor away from the adherent structures. There was a nerve like structure that was involved in the tumor that could not be dissected out. Given the size and abnormal appearance of the tumor, Dr. Billy and Dr. Ginn suspected this tumor could be malignant, and so the decision was made to sacrifice the nerve like structure in order to completely remove the tumor. Pathology subsequently revealed the tumor was benign.

Immediately post-surgery, Dees was noted to have injury to the laryngeal nerve, as evidenced by a paralyzed left vocal cord resulting in a hoarse voice.

In 2001, he underwent Gore-Tex implantation of the vocal cord that improved his voice quality.

In April 1999, Dees was diagnosed with a paralyzed left diaphragm presumed to be as a result of injury to the left phrenic nerve during the August 1998 procedure. He contended as a result of such injury he has lost half of his lung capacity.

Dees has not had a recurrence of hyperparathyroidism since removal of the parathyroid tumor in August 1998.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Dr. Billy fell below the standard of care by not heeding the result of the sestamibi scan and following up with a CT or MRI scan in order to localize the location of the mass. Plaintiff contended that had he done so, he would not have proceeded with the neck exploration, which was unnecessary, resulting in a second procedure, emotional damage and scarring.

Plaintiff further contended Dr. Billy fell below the standard of care with regard to the Aug. 13, 1998 procedure in that he was not qualified to attempt the thoracoscopic procedure to remove the tumor. He was not qualified to perform a thoracotomy and should have referred Plaintiff to a cardiothoracic surgeon. He negligently transected the ligamentum arteriosum during the thoracoscopic approach resulting in bleeding that obscured the surgical field and prevented Dr. Billy from being able to identify the structure, and he negligently injured Plaintiff's left phrenic and recurrent laryngeal nerves resulting in left vocal cord and left diaphragm paralysis.

DEFENDANT'S CONTENTIONS:
Dr. Billy contended that the sestamibi scan prior to the April 21, 1998 procedure was read by a board certified radiologist who concluded the scan did not show any evidence of parathyroid adenoma. Furthermore, the mass in the chest was interpreted as substernal thyroid tissue, which was accessible through the neck exploration. The standard of care required that Dr. Billy proceed with the neck exploration. All experts agreed the performance of this procedure was within the standard of care.

With regard to the Aug. 13, 1998 procedure, Dr. Billy contended based on his training and experience he was qualified to perform the excision of the tumor through either the thoracoscopic or open procedure. Dr. Billy further contended that it was appropriate to transect the ligamentum arteriosum thoracoscopically as it is usually a remnant that would not result in bleeding.

Nevertheless, once bleeding was encountered the procedure was timely and appropriate converted to an open procedure and the bleeding was controlled. The bleeding did not obscure the operative bleed such that they were unable to identify the structures.

Dr. Billy contended the tumor that was encountered was far bigger than the 2 cm x 2 cm described by the CT scan and was abnormal in that it was fungating and adherent to the surrounding structures. There was also a nerve like structure that was contained within the tumor. After several hours of dissecting the tumor away from the structures it was adhered to, it was determined the nerve like structure within the tumor could not be removed from the tumor. Given the potential this could be cancer, as well as the location of the tumor even if it was benign, it was necessary to remove the entire tumor. Thus, the decision was made to sacrifice the nerve like structure.

Settlement Discussions

Defense offered waiver of costs in exchange for dismissal with prejudice.

Result

Defense.

Other Information

On June 14, 2012, Plaintiff filed a Notice of Appeal from the final judgment. EXPERT TESTIMONY: Dr. John Robert Bogdassarian, M.D., otolaryngology, testified the April 1998 neck exploration was an unnecessary surgery. While the standard of care in 1998 did not require performance of a localization study, such as a sestamibi scan prior to performing a neck exploration to locate and excise a parathyroid tumor, given that Dr. Billy ordered the scan, the standard of care then required that he pursue other imaging studies, such as an MRI or CT scan to further investigate what the radiologist interpreted as substernal thyroid tissue, to determine whether it was a parathyroid adenoma that needed to be excised. Dr. Bogdassarian testified that had an MRI or CT scan been performed at that time, the parathyroid tumor would have been identified in the aortopulmonary window, and the only surgery that would have been performed was a chest surgery to remove the tumor. Dr. Bogdassarian testified that in light of the finding of mass in the chest that lit up with the sestamibi scan, the neck exploration was an unnecessary surgery resulting in injury to Plaintiff, consisting of the scar and the emotional toll of having to undergo two procedures. Dr. Noel Fishman, a retired cardiothoracic surgeon, testified the manner in which Dr. Billy performed the thoracoscopic procedure that was converted to a thoracotomy in August 1998 was below the standard of care. He contended Dr. Billy was not qualified to perform the procedure thoracoscopically, a procedure that only a board certified thoracic surgeon should perform. He subsequently testified a general surgeon could perform thoracoscopic procedures in the aortopulmonary window if he had experience of 10-30 open procedures in the area. Additionally, he testified Dr.Billy did not have the qualifications to remove the parathyroid tumor from the aortopulmonary window via an open procedure, and should have referred the case to a thoracic surgeon. He further contended Dr. Billy fell below the standard of care by transecting the ligamentum arteriosum thoracoscopically, resulting in complete obscuration of the operative field. As a result, once the procedure was converted to an open procedure, Dr. Billy was unable to identify the structures, including the left recurrent and left phrenic nerves, and negligently severed such nerves either when addressing the bleed, or when attempting to remove the parathyroid tumor. Dr. Chester Griffiths, M.D., otolaryngologist, testified it was appropriate and within the standard of care to perform the neck exploration on April 21, 1998 even in the presence of the sestamibi scan showing the presence of a mass in the chest. He testified hyperparathyroidism is a diagnosis made surgically and over 97 percent of the tumors are found in the neck. Thus, the surgical algorithm requires that the surgeon first explore the neck to determine whether the tumor is located in that area, before performing a chest exploration. Dr. Billy's decision making in this instance was "textbook." While there was a signal that lit up in the chest, it did not signify that the mass was the parathyroid tumor, and given that the vast majority of the parathyroid tumors are in the neck, the standard of care required exploring the neck instead of going straight to the chest. The April 21, 1998 neck exploration was not unnecessary, and served to eliminate the possibility that the tumor could be contained within the neck. Dr. Orlo Clark, M.D., general surgeon, testified that based on Dr. Billy's significant training and experience in thoracic procedures, he was qualified to perform both a thoracotomy as well as a thoracoscopic procedure to remove the parathyroid tumor that was located in aortopulmonary window. Dr. Clark further testified that it was within the standard of care to transect the ligamentum arteriosum thoracoscopically, and when bleeding was encountered, the procedure was timely and appropriately converted to an open procedure to control the bleed. Dr. Clark further testified that given the appearance of the tumor, in that it was adherent and fungating, as well as the size and the very high calcium levels Dees was experiencing, there was up to a 50 percent chance that the tumor was not benign, but malignant. As such, the standard of care required that Dr. Billy and Dr. Ginn remove the entire tumor including sacrificing the nerve-like structure that was contained within the tumor. Even if it was determined to be benign, the standard of care required that the entire tumor be removed in order to prevent regeneration of the tumor in the aortopulmonary window, which would be exceedingly difficult to access in a subsequent procedure. FILING DATE: May 1, 2002.

Deliberation

three hours

Poll

8-0 (defense)

Length

four days