This unique case involved a female plaintiff with a history of right-sided shoulder and back pain. She presented to the defendant for evaluation of an enlarged, non-painful, right-sided posterior cervical lymph node, which she had noticed approximately 6 months earlier. The node was 1.5 x 1.5 cm and easily palpable along the border of the trapezius muscle; an ultrasound revealed it was negative for malignancy. The defendant biopsied and extracted the node but postoperatively the plaintiff had pain the area of the right tip of her shoulder near the deltoid. The incision healed well though and the plaintiff had normal shoulder and scapula movement, with good flexion and extension of her upper extremities bilaterally and symmetrically. Her pain waxed and waned, so she was referred to a neurologist as well as an orthopedist. She started PT and had less pain and no functional problems over time. Although the pain was lessened, it was still there, so the plaintiff was referred to a pain clinic, where doctors felt she could have new onset RSD, or a recurrence of old RSD.
Eight months postoperatively, the plaintiff presented to a new doctor at a joint center. He found that the plaintiff had difficulty in raising her right arm, both abduction and flexion, and she also had weakness of abduction of her right shoulder. She did however, have full passive external rotation as well as internal rotation behind the back. There was no evidence of shoulder winging or pronation of the shoulder. The supraspinatus was atrophied however, so there was concern for the suprascapular nerve. A month later, during a follow-up appointment, the plaintiff demonstrated Tinel’s sign over her upper shoulder distal to the incision site, and winging of the scapula with significant atrophy of the dorsal shoulder. Spinal accessory nerve dysfunction was suspected, and the plaintiff was referred to a specialty clinic. There, doctors found that the spinal accessory nerve had been transected.
The first step in the visual defense strategy was to familiarize the jury with the anatomy of the neck and the area of the lymph node extraction, including the course of the spinal accessory nerve along with the lymph nodes of the posterior triangle.
Next, the defense sought to educate the jury on the defendant’s procedure, providing them with a step-by-step visual aid while the defendant explained the surgery in detail. This also allowed the jury to see the anatomy as the defendant saw it during the actual procedure.
A second panel showed the same steps in cross-section, giving the jury a more comprehensive understanding of the anatomy in the area of the surgery as well as the location and level of the surgery. This allowed the defendant to show the jury that the entire procedure took place superficial to the cervical fascia, whereas the spinal accessory nerve lies deep to this fascial layer.
The next step in the visual defense strategy was to show the known anatomical variations in the course of the spinal accessory nerve, compared to the defendant’s surgical field. This allowed the jury to see that in the normal anatomy of the spinal accessory nerve, it would be well beneath the cervical fascia, and therefore would not be injured by the extraction surgery. In contrast, it demonstrated that two anatomical variations in which the nerve could be injured is if the spinal accessory nerve is located directly beneath or above the lymph nodes of the posterior triangle where it would certainly be involved in the extraction. The exhibit showed another possible mechanism of injury to the spinal accessory nerve as adhesions, caused by an inflamed or enlarged node, which could manipulate the location of the nerve by pulling it more superficially towards the enlarged node and into the surgical field where it could sustain an injury.
The last portion of the visual defense strategy was to highlight and enlarge the paragraph of the plaintiff’s informed consent for the procedure that outlined the potential for damage to deeper structures as well as the plaintiff’s signature indicating her understanding of these risks. A portion of the operative report was also highlighted and enlarged, in order to show the defendant’s summary of his discussion with the plaintiff regarding the risks of the procedure as well as the plaintiff’s acknowledgement of these risks and her decision to procedure with the surgery.
—Editorial contributed by Emily Ullo Steigler, MS, CMI
—Illustrations contributed by Russ Edwards, MS, CMI