The North Carolina Court of Appeals has reversed a summary judgment favoring a medical doctor, deciding the patient/plaintiff did present enough information to indicate a question of material fact on the issue of whether her surgeon should have performed more testing prior to a second surgery to remove a cancerous mass in her arm.
Plaintiff alleged the doctor violated the accepted standard of medical care for his type of practice when he failed, following an initial, failed surgical procedure to conduct further testing to ascertain exactly what type of mass he was operating on. Plaintiff alleges that because it was a specific type of mass in which the complex system of roots spread out across nerves and an artery – and not a simple lipoma, as the doctor reportedly assumed – the second surgery was botched. She suffered nerve damage that affects her daily life, she said, and had to undergo yet another surgery to actually have the mass fully removed.
In Seraj v. Duberman, the appellate court ruled the trial court should not have granted summary judgment to the defendant doctor. Instead, there is sufficient evidence for the case to go to trial.
According to court records, plaintiff started to feel pressure on her head in 2006, at which time she underwent an MRI and a tumor was discovered. Plaintiff underwent surgery, and the pressure was relieved. Later, though, plaintiff started to experience a similar pressure in her right arm. It started to swell. After about a month, she sought medical assistance. A doctor met with her and told her it was a “fatty lump” that could be removed with surgery. He referred her to a surgeon/ defendant. That doctor also diagnosed this swelling as a “fatty tumor,” also known as lipoma. He explained she could undergo the surgery either while awake or under sedation. She chose to undergo it with only local anesthesia after the surgeon assured it would be simple.
The plaintiff said it was not simple, and she began screaming as soon as he started to cut her arm. He gave her additional anesthesia, but it was not enough to control the pain. The doctor stopped and decided to schedule another time to finish. A second surgery was scheduled for April 2012, about six months after the first one. Between the two procedures, plaintiff did not undergo any additional tests or scans. Doctor estimated it would take about 1.5 hours to remove the mass.
As it turned out, removal was much more complicated. It took three hours. The doctor explained the tumor was “too deep” and there was bleeding. When she called the next day to explain severe pain and numbness in her fingers, the doctor assured her this was normal. When it persisted, she said the doctor told her, “I didn’t do anything wrong.” She told him she suspected a nerve had been cut.
An MRI was conducted, at which time it revealed a “very complicated” tumor that was surrounded by nerves and near an artery. Defendant doctor referred plaintiff to a specialist. She then sought a second opinion. After seeing a number of different doctors of varying specialties, she was told she had suffered nerve damage from the surgery. Doctors at Duke University refused to perform additional surgery on plaintiff’s tumor because it was so complicated. Plaintiff ultimately sought treatment from a surgeon in Texas, who successfully removed the rest of the tumor. That doctor told her that one of her nerves had previously been cut.
Plaintiff became depressed. She could no longer cook or garden or exercise or even work. Where she had once worked full-time teaching American troops Dari (she is originally from Afghanistan), she could no longer perform her job duties because it required writing on a large blackboard. She was forced to collect Social Security Disability Insurance. The ordeal damaged her relationship with her husband.
She filed a personal injury lawsuit for medical malpractice.
The doctor sought summary judgment, arguing he hadn’t breached the standard of care. The trial court agreed with him.
But on appeal to the North Carolina Court of Appeals, that judgment was reversed. The court noted expert witness testimony indicating that as a general surgeon, defendant doctor was not qualified to operate on plaintiff’s tumor. Because he failed to order any MRI tests – particularly after the second surgery – he did not know what type of mass he was operating on. Had he done this testing, he would have realized this mass was not a lipoma and he could have immediately referred her to a specialist.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Seraj v. Duberman, Aug. 2, 2016, North Carolina Court of Appeals
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