Case details

Decision to use pre-auricular incision was appropriate: surgeon





Result type

Not present

face, facial, head, headaches, nerve, neurological, nose, paralysis
On Oct. 15, 2013, plaintiff Maria Soto, 67, a retired apartment manager, underwent an attempted biopsy under the service of Dr. Karim Zahriya, a general surgeon. Soto previously complained to her primary care provider that she had headaches that produced a stabbing sensation in the area of her right temple. Her primary care physician suspected temporal arteritis and immediately placed Soto on Prednisone. Soto was then referred to Zahriya for temporal artery biopsy. Soto met with Zahriya on Oct. 14, 2013, the same day that she saw her primary care physician, and was told that the procedure would be carried out the following day, if Soto elected to undergo the biopsy effort. During the biopsy on Oct. 15, 2013, Soto became agitated and, accordingly, Zahriya could not finish the procedure. As a consequence, no portion of the temporal artery was actually identified or harvested for a pathologist to review, and only local anesthesia was utilized for the procedure. At the end of the procedure, Zahriya noticed that Soto’s right eyelid could not blink in a normal fashion, with the upper and lower eyelids unable to fully oppose each other. Further, the right corner of Soto’s mouth was drooping. Zahriya attributed Soto’s condition to be a reaction to the local anesthetic that was utilized. As a result, Zahriya placed an eye patch on Soto’s right eye, provided Soto with some pain medication, and requested that Soto return the following day. Soto did not return to Zahriya and, instead, presented to her treating ophthalmologist of many years. The ophthalmologist believed that temporal arteritis was of low clinical consideration and that Zahriya had likely caused injury to the seventh cranial nerve, which is a motor nerve that branches into multiple locations and affects multiple functions, including closing of the eye. Soto sued Zahriya, alleging that Zahriya had failed to properly perform the procedure and that this failure constituted medical malpractice. The plaintiff’s ophthalmology expert testified that Zahriya made a pre-auricular incision in order to carry out the attempted temporal artery biopsy and opined that the incision was below the standard of care because the main trunk of the seventh cranial nerve, including branches thereof, is found at that location. The expert opined that the risk of an inadvertent injury to the facial nerve is much higher when making the pre-auricular incision at the location of the seventh cranial nerve than it would have been if the biopsy incision was made higher up, in the region of the hairline. Thus, the plaintiff’s ophthalmology expert opined that the standard of care was violated by Zahriya’s choice of incision site and that Soto was unnecessarily exposed to a risk of a nerve injury. Zahriya and the defense’s general surgery expert both testified that the decision to use a pre-auricular incision was routine and standard in all respects and that general surgeons have been trained for decades, when carrying out temporal artery biopsy procedures, to approach the targeted vessel at that location. Defense counsel argued that, as an ophthalmologist, the plaintiff’s expert was unfamiliar with the training and surgical technique taught and utilized by general surgeons, such that the plaintiff’s expert was confusing “personal preference” for standard of care considerations, inasmuch as ophthalmologists are trained to make the incision site for such a biopsy at a location superior to the pre-auricular incision site selected by Zahriya., Soto sustained temporary partial paralysis of the right, seventh facial nerve, resulting in the incomplete ability to close the right eye, drooping of the right side of her mouth, and some patchy sensory loss related to the third cranial nerve, which was alleged to have been collaterally injured during the biopsy procedure. The plaintiff’s treating ophthalmologist subsequently recommended that Soto continue using the eye patch and noted that Soto’s right eye was quite droopy, although she had been diagnosed with bilateral ptosis (drooping eyelids) in the years leading up to the October 2013 procedure. Soto was then seen at multiple times by her treating ophthalmologist and primary care physician. Soto’s primary care physician eventually referred her to a neurologist, who obtained an MRI of Soto’s brain, including cranial nerves. An EEG and carotid ultrasound were also performed. In December 2016, the neurologist concluded that Soto had sustained a partial palsy of the right, seventh cranial nerve. Soto was ultimately released by the neurologist on Dec. 26, 2013, and told to follow up on a pro re nata, or when necessary, basis after noting that Soto was able to completely close her eye and no longer had a loss of muscle control affecting the right corner of her mouth. Despite being able to completely close her eye again and no longer having drooping of the right side of her mouth, Soto claimed that she continues to suffer permanent in the nature of a pinching or pulling sensation when attempting to keep her right eyelid open, which, in turn, generates disabling headaches. Thus, Soto claimed that she experienced a life-altering event, inasmuch as she continues to have headaches associated with her right eye and that over the past few years, she has had severe difficulty keeping the right eye open, as opposed to the initial complaint, which was an inability to close the right eye completely. Family members testified that there has been a profound change in Soto’s activity level since October 2013 and that is not the same person that she used to be. Specifically, they claimed that Soto was extremely active prior to the incident and that Soto would regularly drive to Fresno from Delano for family parties and planning family functions, as Soto’s mother was 95 at the time and her family included five generations of living family members. In addition, they claimed that Soto would often babysit her great grandchildren. However, Soto’s family members claimed that after the incident, Soto changed her behavior in order to avoid tension headaches from the drive to Fresno and that when Soto felt a headache coming on, she would lie down, rest and cover her eyes. They alleged that Soto often had to lie down and rest at least two times daily. Plaintiff’s counsel presented a range of damages for Soto’s past and future pain and suffering and asked the jury to award Soto based on how long it thought Soto would have continued to be active, if not for her . For example, counsel argued that if the jury thought that Soto would have been active for only 10 years, then it should award Soto $366,500 and that if the jury thought Soto would have been active for 15 years, which was a little less than her life expectancy, then it should award Soto $466,500.
Superior Court of Kern County, Kern, CA

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