$1,115,228 Verdict – Alleged Negligent Performance of Endoscopic Sinus Surgery

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Rena Berger & Russell Hart v. Katherine Joy Shen, MD and Westchester Medical Group, P.C.

Plaintiff contended that the defendant negligently used excessive force in the performance of endoscopic sinus surgery causing a trauma that resulted in an injury to the plaintiff’s cribriform plate located at the top of her sinuses.  This resulted in a 1.5 cm opening in the plate causing cerebral-spinal leak. The plaintiff further asserted that the defendant failed to advise her that the intra-operative trauma to the nasal area necessitated the placement of a dural patch or plug. Because plaintiff was not properly advised post-operatively, she did not realize that a runny nose that continued for nine months was related to cerebral-spinal fluid leak, and by the time the correct cause was ascertained by a subsequent non-party otolaryngologist, the plaintiff required much more complicated surgery.  Plaintiff claimed that as a result of defendant’s negligence in performing the sinus surgery and failing to give proper post-operative instructions, she suffered anosmia, or the loss of smell and associated reduction in taste that was permanent in nature, as well as dysosmia, or distortion of her smell.  Plaintiff maintained that she will permanently suffer symptoms that included intermittent headaches, and will require constant monitoring and possibly further surgery.

The plaintiff claimed that the defendant employed negligent surgical technique and caused injury to the olfactory nerve, causing anosmia and dysosmia.

The defendant denied that the surgery was performed in a negligent fashion and further claimed that the loss of smell and taste preceded the surgery.


The jury found that the defendant did not depart in the presurgical work-up, that the defendant provided adequate informed consent prior to the surgery, that the surgery was not performed in a negligent manner, but that the defendant did not tell the plaintiff about the patch, constituting a deviation, and that proper post operative care was not provided. They then awarded $1,115,228 to plaintiff, allocated as follows: $500,000 for past pain and suffering, $500,000 for future pain and suffering over 20 years, $26,738 for past medical expenses, $7,500 for past lost earnings, $50,000 for past loss of services and $50,000 over 20 years for future loss of services. The defendant’s post trial motions were denied.