Unintended Nerve Removal Led to Diminished Strength in Bicep and Deltoid

Allegation

Failure to properly perform lymph node biopsy resulting in permanent damage to a peripheral nerve.

Case Details

A 53 YOF was referred to general surgery by her PCP for possible excision of multiple lumps on her left clavicle. Past medical history included Von Hippel-Lindau syndrome with reported lesions in the C7 cord area and brain; cancerous tumors removed from her kidney and pancreas; IDDM; and HTN.

Patient underwent a CT which revealed significant mediastinal, hilar lymphadenopathy, enlarged periceliac, supraclavicular lymph nodes, and lung windows with multiple bilateral lung nodules. Findings were suggestive of a metastatic malignancy, primary unclear. Lymphoma could also be considered.

The first visit to the defendant surgeon was one month post CT. Examination revealed a soft tissue mass in the supraclavicular region that had been present for four months and was causing right shoulder pain. The surgeon explained the treatment options to the patient and advised he would review the CT with the radiologist prior to making final treatment recommendations. Two days later, the surgeon called the patient to discuss the location of the mass and the recommendation to excise it. Documentation stated that the risks and benefits were discussed with the patient and included bleeding, cardiac or pulmonary complications, fluid collection at the operative site, and bruising.

Surgery was performed under general anesthesia nine days after the first visit to the defendant surgeon. A CT of the chest was reviewed immediately prior to surgery, with a preoperative diagnosis of mass at the supraclavicular region posterior to the sternocleidomastoid muscle. The area was visualized under CT guidance and the mass identified. A curvilinear incision was made above the clavicle and the mass was visualized and dissected free for frozen section. Subsequently, a second mass was identified, removed, placed in formalin, and sent to the Department of Pathology. The patient tolerated the procedure well.

The surgeon was informed that the initial specimen contained a portion of a large peripheral nerve. The anesthesiologist documented overhearing the pathologist inform the surgeon that the frozen section contained a large nerve. The pathology report noted Specimen A included an elongated portion of nerve tissue, 2 cm x 1 cm and 0.5 cm thick. Specimen B submitted in formalin consisted of an ovoid tan-yellow rubbery tissue fragment, 2.5 cm x 1.5 cm x 0.6 cm, diagnosed as non-caseating granulomas.

PACU nursing notified the surgeon that the patient was unable to abduct her right arm. Neurosurgery was consulted and dexamethasone IV was ordered. Upon discharge, the patient was stable, with weakness in the right arm. She was advised to call the office in two days if she was still having trouble.

The patient returned to the surgeon’s office 11 days postop complaining of right arm pain and weakness. The surgeon prescribed norco and advised the patient to follow-up with the neurosurgeon, and then return in one week. She returned as directed with continued right arm weakness and good grip strength. One-month post-op, the patient was seen by the neurosurgeon who had been following her for Von Hippel-Lindau syndrome. She complained of weakness in the right deltoid, biceps, and shoulder since removal of the tumor, although slightly stronger. She was in a shoulder sling and doing passive ROM as the shoulder cooled down. The neurosurgeon ordered an MRI and EMG. The possibility was discussed of sending the patient to a peripheral nerve specialist for complex brachial plexus evaluation or surgical intervention.

Five weeks post-up, the patient returned to the surgeon, who noted an MRI, EMG, and PT had been ordered due to ongoing weakness but less pain in the upper arm. She had returned to work. MRI findings included degenerative changes in the spine, multiple enlarged lymph nodes and pulmonary nodules.

The patient returned to the surgeon two weeks later for continued follow-up. Results of the MRI were reviewed. The patient continued to work and the incision was healing. The patient underwent an EMG and nerve conduction study ordered by the neurosurgeon. The EMG demonstrated brachial plexopathy with lesion most closely localized to the lateral cord and complete injury to the axillary nerve. Based on continued arm weakness, the ordering neurosurgeon referred the patient to a neurologist. Thirteen weeks post-op the neurologist evaluated the patient and found it likely she suffered a traumatic right upper trunk lesion during the biopsy in July 2014.

A year later, a second neurosurgeon performed surgery for spinal accessory to suprascapular nerve transfer, Oberlin nerve transfer, radial nerve to axillary nerve transfer, as well as associated nerve procedures. Six weeks post-op she had achieved normal muscle tone and bulk with full strength of hand intrinsic, wrist flexion extension, pronation and supination. The patient also experienced diminished strength in the bicep and posterior deltoid.

Expert Testimony

The plaintiff expert opined that the defendant surgeon was not where he was supposed to be and performed a biopsy of a structure that was clearly not a lymph node. The surgeon should have realized he was too deep and was not dealing with a lymph node.

The defense experts were unable to support the care provided.

The plaintiff and her spouse were good witnesses. The pathologist remembered speaking with the surgeon regarding the nerve specimen. The consulting neurosurgeon was not told by the surgeon about the pathology report that indicated a nerve specimen.

Resolution

The case was settled with the defendant surgeon’s consent due to defense experts critical of the insured removing a portion of a nerve rather than the lymph node and failure to inform the plaintiff of the nerve damage.

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