Jury Hands Down a $2 Million Verdict Despite Plaintiff’s Own Negligence

Case Overview

Case Name: Margaret Louis and Robert Ebin v. Charles Kimmelman, M.D., No. 119556/97

Case Type: Medical Malpractice

Injury: Permanent hearing loss/Facial nerve impacts

Plaintiff Attorney(s):

• James E. Colleran; the Law Offices of James E. Colleran
• April L. Strang-Kutay; Goldberg, Katzman & Shipman, P.C.

Defense Attorney(s):

• Lewis Rosenberg; Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, L.L.P.

Case Outcome: Verdict-Plaintiff

Award Amount: $2,000,000.00

What Happened?

Margaret Louis, a 44-year-old attorney, had been experiencing hearing loss as well as a continual ringing in her ears. Additionally, she had a pain in her right ear off and on. She then went to see the defendant, Dr. Charles Kimmelman, on December 28, 1994, for help with what was happening. After conducting tests, Dr. Kimmelman found that Louis had suffered hearing loss in her right ear.

Almost three years later, on April 8, 1997, the plaintiff saw Dr. Kimmelman again. Tests revealed her hearing had gotten worse. This time, Dr. Kimmelman ordered a magnetic resonance imaging (MRI) for a deeper look at her right ear. On May 22, 1997, the MRI showed that the plaintiff had an acoustic neuroma. Given the size of Louis’s tumor, her only option was to have it surgically removed. After the surgery, however, the plaintiff suffered permanent hearing loss in her right ear and impacts to her facial nerves.

An acoustic neuroma is typically a slow-growing, noncancerous tumor. It is found on the main nerve that runs from the inner ear to the brain. Branches of this nerve directly influence your balance and hearing. Furthermore, pressure from an acoustic neuroma can cause hearing loss, ringing in your ear, and unsteadiness.

Common signs and symptoms of acoustic neuroma span, including:

• Hearing loss that gets worse over months to years, typically only in one ear or more severely in one ear
• A ringing in the impacted ear
• A loss of balance/steadiness
• Dizziness
• Loss of facial muscle movement, numbness, and weakness

The protocols for patients with this condition are periodic monitoring, radiation, and surgical removal.

Allegations and Testimony

Plaintiffs’ Allegations

The plaintiff alleged that she suffered permanent hearing loss in her right ear and continuous roaring in her head. Additionally, the plaintiff claimed that she suffered headaches, walking imbalances, and vertigo. The plaintiff also claims pain and suffering from the ordeal.

Louis claimed that the doctor failed to diagnose her acoustic neuroma in 1994. As such, the plaintiff argued that the doctor’s failure denied her the opportunity of having her tumor treated earlier. According to the plaintiff, if treated earlier, a gamma knife, non-surgical procedure would still have been possible. With a timely diagnosis, the plaintiff said she could have had access to treatments with fewer surgical risks. After her eventual surgery, she claims she suffered permanent hearing loss, suboccipital headaches, and tinnitus (ringing in her ears).

Doctors use gamma knife surgery, also known as stereotactic radiosurgery, to treat smaller acoustic neuromas. With gamma knife surgery, doctors direct radiation to an acoustic neuroma. This targeted radiosurgery confines radiation treatment to the narrow internal auditory canal to avoid damage to nerves responsible for hearing, balance, and facial movement and sensation. Medical professionals view gamma knife treatment as less likely to cause damage to hearing or facial muscles than open surgery.

Louis also claimed that Dr. Kimmelman was negligent when he did not refer her to another doctor or specialist who could have diagnosed her tumor and properly treated her. An expert witness for the plaintiff, who was her treating neurosurgeon and a neuro-oncologist, testified that Louis’s slow-growing tumor did not enlarge very much from 1994-1997. Additionally, the expert testified that radiosurgery was available in 1997 when the MRI revealed her tumor. This expert also testified that he had advised the plaintiff about brain damage risks associated with radio surgery before she decided on the micro-surgery.

Defendant’s Arguments

The defendant then denied all of the plaintiffs’ allegations. Furthermore, the defendant said that her injuries resulted from her choice to forgo treatment. The defendant physician maintained that Louis declined to have an MRI done after he recommended it in 1994. Kimmelman also said he told Louis to come back for a follow-up appointment six months to a year after that appointment. The defendant supported his assertions with his 1994 treatment notes. However, the plaintiff denied these assertions.

The defendant’s expert otolaryngologist testified that he also had examined the plaintiff. The expert testified that he recommended that she do an MRI eight months before she first saw Dr. Kimmelman. The plaintiff also disputed this testimony.

Finally, the defendant conceded that the plaintiff had suffered a hearing loss. However, the defendant asserted an absence of medical proof of her other injuries.

Who Won the Case?

On November 8, 2002, a jury found that Margaret Louis was negligent. However, they determined that Louis’s negligence was not the proximate cause of her injuries and awarded her $2 million.

Expert Specialties

The plaintiffs retained expert witnesses in:

• Otolaryngology
• Audiology
• Neurosurgery

The defendant retained expert witnesses in:

• Otolaryngology
• Neurosurgery

Key Takeaways

Plaintiff attorneys evaluating new cases will take note that even when it may appear that a client was negligent, significant jury awards are still possible. Doctors that fail to make timely diagnoses that prevent patients from taking advantage of less risky surgical options may still be held accountable.