Claimed Failure to Diagnose Tumor Ends in Defense Verdict for Harrisburg Partner Michael Badowski.

This case involved an alleged 20 month failure to timely diagnose and treat right ear meningioma tumor in a 40 year old female resulting in right ear deafness and significant facial paralysis. The woman  first presented to our client otolaryngologist (ENT)  with complaints of itchy, painful ears with diminished hearing in the right ear.  She also complained of intermittent tinnitus, but denied any episodes of vertigo.  She also offered a past medical history of suffering from fibromyalgia.  Audiogram testing, including air conduction, bone conduction, speech reception and speech recognition were performed.  It was concluded, at that time, that the woman was suffering from a conductive hearing loss, which was thought to be most likely secondary to otosclerosis and was treated accordingly.  No imaging studies were done despite the Plaintiff’s specific request for MRI one year into the treatment for presumed otosclerosis.  Under the clinical circumstances presented in conjunction with numerous performed audiometric studies, the Doctor determined that MRI was not indicated.  At that time, Florical was prescribed which resulted in improvement in the Plaintiff’s audigrams which tended to support the diagnosis of conductive hearing loss due to otosclerosis as opposed to a sensorineural hearing loss.  One year later, the Plaintiff returned with a sudden profound hearing loss on audiogram that could not be explained by progressive otosclerosis alone. An MRI was then ordered which revealed a benign meningioma tumor encasing the internal auditory canal and compressing the 7th and 8th cranial nerves and referral to a neurosurgeon was made.  Surgical removal of the tumor resulted in the sacrifice of the right auditory nerve and partial injury to the right facial nerve. Plaintiffs postulated that had MRI been performed at the outset, the tumor would have been discovered and removed at a time when hearing to the right ear could have been preserved.

The defense established, through the exceptional expertise of neuro-otologist, Moises Arriga, M.D. from the University of Pittsburgh, that meningioma tumors of this sort are extremely slow growing and that the Plaintiff’s tumor most likely was present for at least ten years. By way of later performed serial MRI’s, Dr Arriga extrapolated that Plaintiff’s meningioma would likely have only grown at most 2 millimeters during the 20 months attributable to our client’s professional involvement. Dr. Arriga persuasively testified that this case involved an unusual presentation of an unusual and rare type of acoustic tumor. He explained that because of the size and location of the tumor, a wait and see approach would likely have been taken even if the tumor was fortuitously diagnosed from the outset because removal of the tumor, regardless of timing, would have sacrificed the auditory nerve.

Following a week long trial, a 12 member Cumberland County jury unanimously returned a verdict of  no negligence in favor of our ENT physician client.  The case was prosecuted on behalf of the Plaintiffs by Harrisburg attorney, Robin Marzella and defended on behalf of the doctor by Margolis Edelstein partner, Michael Badowski.

Michael M. Badowski  
NBTA Certified Civil Trial Advocate
Direct Dial 717-760-7500
FAX  717-975-8124
Mobile   717-580-5860