CVN screenshot of plaintiff attorney Thomas Giuffra (left) and defense attorney Duke DeHaas (right) delivering their opening statements
Los Angeles, CA - A California state court jury heard opening statements Wednesday in a medical malpractice lawsuit filed by a patient with permanent facial paralysis accusing a prominent neurosurgeon of encouraging a supposedly risky surgery and violating the terms of his consent, and the proceedings are being webcast gavel-to-gavel by Courtroom View Network.
Plaintiff David Pullman sued Dr. Marc Schwartz following surgery in 2014 to remove an acoustic neuroma, a slow-growing, benign tumor that caused Pullman to develop significant hearing loss. Pullman claims Dr. Schwartz and his clinic at the time, The House Institute, misrepresented the dangers of the surgery he underwent, however Dr. Schwartz’s attorney told jurors that Pullman’s treatment met the standard of care and complied with the terms of his consent.
Pullman’s attorney, Thomas Giuffra of Rheingold Giuffra Ruffo & Plotkin LLP, told jurors that the reason his client had his head wrapped in saran wrap while sitting in the courtroom was because he partially lost the ability to blink and had to protect his right eye, and that he would have never undergone a surgery known as the “translab” procedure if Dr. Schwartz provided him accurate information about the risks of damaging the facial nerve.
Giuffra argued to jurors that Pullman was a good candidate for a non-invasive radiosurgery procedure involving gamma radiation, but that Dr. Schwartz supposedly encouraged the translab surgery because it generated substantially more revenue for his clinic. Giuffra suggested that Dr. Schwartz exaggerated the risks of cancer associated with the radiosurgery procedure, which he claimed had less than a .5 percent change of damaging the facial nerve as opposed to a 2.5 percent chance associated with translab surgery.
Giuffra told jurors that Dr. Schwartz allegedly knew that risk was even greater, citing a paper he published after Pullman’s surgery that Giuffra characterized as showing a risk of facial nerve damage associated with translab surgery of nearly fifty percent.
“Any person who is leaving this courtroom tonight going home on the highway, if they have a less than .5 percent chance of being hit by a bus on their way home as opposed to a 50 percent chance of being hit by a bus going a different way - they’re going to go the way that gets them a reduced risk,” Giuffra said during his opening statement, according to CVN’s webcast of the proceedings.
Giuffra argued this case goes beyond a normal medical malpractice lawsuit because the supposed misrepresentation of the translab versus the radiosurgery procedures amounted to fraud, and he told jurors that Dr. Schwartz’s alleged failure to comply with the terms of the limited consent Pullman gave for the surgery amounted to medical battery.
According to Giuffra’s opening statement, Pullman specified in consenting to the surgery that if specialized detectors in the operating room indicated any damage to the facial nerve that Dr. Schwartz was required to immediately terminate the procedure regardless of how much of the tumor remained.
Despite that requirement, Giuffra told jurors that Dr. Schwartz continued operating for nearly two hours even though the detectors suggested the facial nerve was unresponsive 25 times.
“They had an agreement,” Giuffra said. “There’s a problem? Close me up.”
Giuffra didn’t specify a total amount of damages he would seek during his opening statement, but he did describe to jurors how Pullman’s post-surgical therapy bills exceed $1 million. He said Pullman, an active middle-aged man with a healthy social life prior to the surgery, has been essentially rendered a hermit due to his facial disfigurement.
Representing Dr. Schwartz, attorney Duke DeHaas of LaFollette Johnson DeHaas Fesler & Ames told jurors that Pullman’s treatment completely met the standard of care, and that Dr. Schwartz is considered the leading specialist in acoustic neuroma surgery anywhere in the country.
“He has performed more surgeries for acoustic neuromas than any other surgeon in the United States of America,” DeHaas told the jury. “Everybody knows about him because he is the best there is.”
DeHaas explained that Pullman’s tumor was growing at an unusually rapid rate, and that without rigorous intervention it could eventually kill him. He argued the translab surgery gave Pullman that best chance at removing it with the least risk of regrowth, which he said could require an even riskier follow-up surgery.
He strenuously denied that money had anything to do with Dr. Schwartz’s clinical recommendation and insisted that there is no way to operate on an acoustic neuroma without some risk of damaging the facial nerve.
“It’s just anatomically the way it is,” DeHaas said. “The nerve is that fragile.”
DeHaas told jurors that Giuffra mischaracterized the paper supposedly showing a 50 percent risk of facial nerve damage, and he argued that retained experts who analyzed a video recording of Pullman’s surgery would testify that Dr. Schwartz performed the procedure properly.
DeHaas suggested Pullman’s facial nerve was already damaged when Dr. Schwartz took over from the ENT surgeon - who was not a defendant in the case when openings began - after the ENT performed the initial removal of skull bone to allow access to the tumor.
DeHaas explained Pullman’s tumor was surrounded by so much tissue that he reasonably interpreted the lack of response from the detectors as indicating he wasn’t cutting close enough to the facial nerve to cause any damage, and that he performed a small and medically appropriate amount of additional tumor removal after confirming the facial nerve was no longer responding in order to minimize the chance of dangerous regrowth.
The trial, taking place before Judge J. Stephen Czuleger, is expected to take a number of weeks to complete, and CVN’s gavel-to-gavel coverage will continue for the duration of the proceedings.
The case is captioned David Pullman v. Marc Schwartz MD, et al,, case number BC597684 in Los Angeles County Superior Court.
E-mail David Siegel at dsiegel@cvn.com