Silverman Bernheim & Vogel

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SB&V Attorney Gains Defense Verdict for Otolaryngologist in Philadelphia County Jury Trial

On March 11, 2004, Silverman Bernheim & Vogel attorney John M. Pumphrey successfully defended an otolaryngologist in a medical negligence case which was tried to a jury in the Philadelphia County Court of Common Pleas. The case involved allegations of nerve damage and loss of taste following a tonsillectomy performed in February of 2002. The trial lasted one week and was presided over by The Honorable Sheldon C. Jelin.

At trial, plaintiff alleged that a mouth gag device, which was used to keep her mouth open during the procedure, was improperly inserted and expanded, causing excessive pressure on her tongue, extensive nerve damage, and a complete loss of her sense of taste. There was evidence of some difficulty in inserting the device. There was also evidence that plaintiff had tongue numbness and distortion of taste postoperatively. Plaintiff also asserted a claim of lack of informed consent, asserting that she gave her consent to have only Mr. Pumphrey’s client perform the surgery and did not consent to resident participation.

With respect to the alleged negligence, Mr. Pumphrey argued that there was no evidence of excessive pressure during the procedure as there was no evidence of cyanosis and that a complete loss of taste was anatomically impossible as the mouth gag device could not damage all the nerves that control the sense of taste. With respect to the informed consent issue, Mr. Pumphrey argued that plaintiff had signed a hospital consent form clearly stating the possibility of resident participation and that plaintiff had signed similar consent forms for previous surgeries at the very same hospital. With respect to damages, Mr. Pumphrey argued that plaintiff was inconsistent in describing the extent of her loss of taste during subsequent testing and at trial, and that any distortion of taste could be attributed to her previous medical history.

At the close of trial, the jury of twelve deliberated for approximately 20 minutes before returning with a verdict in favor of all defendants. Plaintiff’s pre-trial demand was $1,000,000. Mr. Pumphrey made a pre-trial settlement offer of $200,000 on behalf of his client. The offer was promptly rejected by plaintiff and rescinded by Mr. Pumphrey at the start of trial. On the third day of trial, plaintiff lowered her demand to $750,000. However, no further settlement offers were made prior to the jury’s verdict.

Posted: April 7, 2004

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