Wrong side of plaintiff’s face was treated with radiation – $800,000 Verdict

Plaintiff was diagnosed with right trigeminal neuralgia which caused significant pain to the right side of her face. The condition was not adequately controlled with medication and her neurosurgeon recommended that she undergo a radiation procedure known as Gamma Knife.
Since Gamma Knife works with the application of radiation, its use is controlled by the NRC, and the only person authorized to use the Gamma Knife is a person certified by the NRC. In this case the neurosurgeon was not an “authorized user,” so the procedure had to be conducted under the auspices of a radiation oncologist (the defendant).
Although it was the intention to treat the right trigeminal nerve, the radiation oncologist identified the treatment site as the “left” trigeminal nerve–which was treated. The result of radiation to the left nerve was “left trigeminal neuralgia”. Meaning that the plaintiff now had bilateral severe facial pain.
Since the treatment for the left trigeminal neuralgia was the same as that for the right, there were no medical expenses. The plaintiff was retired, living in Florida, and there were no lost wages.
The defense was that the presence of the oncologist was merely a formality. The operative plan was developed by the neurosurgeon, and he had inadvertently written on his plan “left” instead of “right”–so, it was really his fault.
The “written directive,” required to be signed by the “authorized user” in order for the case to proceed, showed the diagnosis as “right trigeminal neuralgia” (written by a nurse), but the treatment site was identified by the defendant as the “left” trigeminal nerve.
On cross-examination the defendant candidly admitted that if he had simply read the directive before signing it, he would have seen the inconsistency and this error likely never would have occurred.
In closing plaintiff asked for $800,000 plus interest from the date of the error.
As an aside, suit was filed alleging both negligence and battery. It was our intention to proceed only under battery and so advised defense counsel and we had no expert on negligence. After iiiOsborne v Mayer,iii we conceded we would lose a summary judgment motion as to the battery count and sought leave to add an expert for the negligence count. Leave was granted and the case continued. In hindsight, having to prove negligence probably contributed to the verdict.

Type of action: Medical malpractice

Injuries alleged: Left trigeminal neuralgia (severe left-sided facial pain)

Name of case: Bearse v Virginia Radiation Oncology Associates, et. al.

Court: City of Richmond Circuit Court

Case no.: CL 12-137

Tried before: Jury

Date resolved: July 6, 2017

Verdict or settlement: Verdict

Amount: $800,000 plus interest from 2008

Attorneys for plaintiff: Gary B. Mims, Fairfax

Defendant’s experts: Patrick Sweeney