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Managing and Appellate Partner, Michael N. Romano, and Partner Adam T. Brown, obtained summary judgment on behalf of MCB’s client, an orthopedic spine surgeon.

The plaintiff claimed MCB’s client negligently performed a C4-C5, C5-6, C6-7 anterior cervical discectomy and fusion by causing injury to the left vagus and/or recurrent laryngeal nerve resulting in vocal cord paresis  and voice dysfunction.

In support of summary judgment the affirmation of an expert in orthopedic spine surgery was submitted. MCB’s expert opined: (1) the cervical discectomy and fusion recommended and performed  was indicated; (2) MCB’s client obtained proper informed consent and specifically documented the patient was informed that“ voice problems” were a known risk of the procedure; (3) a reasonable person in plaintiff’s position—in severe pain with multiple discs impinging on the cervical spine who could not hold his head up, a condition that could only be relieved with surgery—would not withhold consent for the procedure given the infinitesimal risk of vocal cord paresis  and voice dysfunction; and(4)  a subsequent treater’s findings on flexible scope examination of normal vocal fold motion ruled out any injury to left vagus, laryngeal nerve, vocal cords and vocal cord paralysis as a result of the surgery. 

In opposition the plaintiff submitted the affirmation of an otolaryngologist who never performed cervical spine surgery and claimed to have merely “worked with orthopedic surgeons and neurosurgeons” and  treated patients with vocal cord injuries. This expert claimed the nerves were not protected during surgery and there was a direct injury to same “from instrumentation or otherwise.”

In Reply, it was successfully argued plaintiff’s expert was incompetent, as an otolaryngologist, to render an opinion as to whether an orthopedic spine surgeon properly performed cervical spine surgery. It was further argued plaintiff’s expert’s opinion that there was a direct trauma to the nerves during the procedure was belied by the records, specifically the records of the subsequent treater, who found no such injury.

The Court agreed with our position and dismissed the case, holding that plaintiff’s expert’s opinion was based on improper speculation without medical proof and impermissible hindsight reasoning— i.e., because the plaintiff claimed he suffered a surgical complication, the surgery must have been negligently performed. The Court cited the well settled principle that the mere presence of an injury does not mean there was negligence.

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