As a result, Mr F suffered significant medical bills, pain, and suffering, and was left with permanent damages which affected his activities of daily living. Mr F had scarring, pain, numbness of lips and mouth, and a reduced ability to open his mouth. His ability to eat and drink were impaired.

The patient sought the counsel of a plaintiff’s attorney and filed a medical malpractice lawsuit against Dr M, who was represented by attorneys provided by his malpractice insurance company.

During the discovery portion of the case, depositions of all the parties were taken. During Dr M’s deposition, he admitted that he had inadvertently, but negligently, failed to review the original MRI report which noted concerns about cancer in both the lump on the neck and the base of the throat. He also admitted to failing to review all the images of the MRI. During questioning, he agreed that he should have performed a fiberoptic laryngoscopy before resecting the mass on the patient’s neck surgically.

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According to the deposition of the patient’s treating radiation oncologist, the spillage of the cancer cells due to the surgery, and the ensuing need for high dose radiation over a larger surface area significantly increased Mr F’s risk for ORN. Two other physicians were deposed who agreed that the tumor spillage ultimately caused the ORN, one of whom, surprisingly the defense’s expert, testified that but for the spillage, the patient’s risk of ORN would have been approximately 0.01 percent.


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Because Dr M admitted that he breached the standard of care, the court held that negligence had been established as a matter of law. It was left to the jury to decide the 2 issues of causation and damages.