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Plaintiff's Verdict Overturned on Appeal and Action Dismissed

January 8, 2015

Senior Partner Peter T. Crean and Appellate partner Barbara D. Goldberg were successful in arguing on appeal that a verdict awarding damages for vocal cord paralysis following an aortic aneurysm repair should be set aside and the action dismissed. The plaintiff alleged that the defendant, a Board Certified cardiac surgeon, had negligently caused injury to the plaintiff's left recurrent laryngeal nerve during the course of an aortic aneurysm repair, resulting in paralysis of his left vocal cord. All the physicians who testified, including the plaintiff's experts, acknowledged that vocal cord paralysis occurs in 15% of surgeries on this area of the aorta despite appropriate surgical technique and such is a "known" risk of this type of surgery.

 

According to the plaintiff's surgical expert, the defendant departed from accepted practice by not tracing the nerve with his finger to ensure that it was not closer to the aorta than the defendant assumed. (According to the defense witnesses, this would have posed a substantial risk of injury to the nerve and other adjacent structures.)

 

A principal argument on appeal, following the denial of the defendant's motion to set aside the verdict, was that the plaintiff's expert's testimony was impermissibly speculative in light of the known risk of vocal cord paralysis, and that there was no evidence as to how or when during the procedure the nerve was injured. The Appellate Division agreed, holding that there was "no valid line of reasoning and permissible inferences by which the jury could have rationally concluded that a deviation from accepted community standards of practice" by the cardiac surgeon was a proximate cause of the injury.

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