Martial arts instructor wins $2.5 million dollar verdict

After deliberating for 50 minutes, a Philadelphia jury Friday returned a $2.5 Million verdict to compensate a man for the pain and suffering he received after complications in a thyroid surgery that removed a malignant tumor.

Eric G. Zajac, associate at Weinstein, Goss, Schleifer, Eisenberg, Winkler, Rothweiler & Ostroff argued the case for his client, Alan Feldman, before Common Pleas Court Judge Victor J. DiNubile.

The award breaks down into $2.2 million for Feldman to compensate him for pain and suffering, including embarrassment, humiliation, loss of life's pleasures and discomfort. The jury awarded $300,000 to Feldman's wife for loss of consortium.

The case was a re-trial that had ended in a hung jury in May 1997 before former Common Pleas Court Judge Paul Ribner. In 1997, the trial lasted about 10 days and after deliberating for two days, the jury was unable to reach a verdict. Zajac said he thinks this case is one of the oldest Day Backward cases in the system.

Zajac said it took almost two years to re-try the case because of the defendant's attempted appeal of the hung jury. He said no settlement offer was ever made.

This time around the trial only lasted four days because fewer witnesses were called, Zajac said.

BACKGROUND

Within a year before the surgery, Feldman was the second highest ranked Krav Maga instructor in the country, Zajac said. Krav Maga is a form of Israeli self-defense.

After finding a nodule on Feldman's neck, his primary care physician referred Feldman to the defendant, Dr. Joseph Entine, a general surgeon, Zajac said.

"The plan was to surgically open the neck and remove the nodule from the right side of the neck from the thyroid and send it to pathology," Zajac said.

Zajac said that Entine testified he explained to Feldman that there was a possibility that there could be damage to the laryngeal nerves, the nerves that control the vocal cords, during the surgery.

Feldman underwent the surgery on August 16, 1990, at Rolling Hill Hospital, which was not a named defendant at the time the case went to trial.

"When the patient awoke from surgery, according to the defense, the records indicated an intact voice, the ability to phonate and the ability to pronounce the letter 'e'" a medical test to determine if there was damage during surgery, Zajac said.
Just days after the surgery, Feldman had his first complaints of hoarseness and was diagnosed in October 1990 with a paralyzed left vocal cord.

Pathology reports of the removed nodule did indicate it to be malignant and after undergoing ablation therapy at Fox Chase Cancer Center, Feldman has remained cancer-free.


THE TRIAL

"[We] put on evidence that the paralyzed left vocal cord was due to an error in surgical technique which occurred during the surgery," Zajac said. "The plaintiff was seen by approximately five ear, nose and throat specialists who performed diagnostic tests who confirmed the left vocal cord paralysis."

Feldman was left with a weak, hoarse voice after the surgery, and could not project his voice over background noises.
Before surgery, Feldman was teaching Krav Maga full time and had a large following. After surgery, the plaintiff tried to use a microphone to compensate for the loss of vocal capacity, but ultimately unable to instruct on more than a one-on-one level, Zajac said.

One of the plaintiff's witness, Darren Levine, a Krav Maga expert on the West Coast, testified that Feldman was on the same track as Levine, who now operates a very successful Krav Maga business.

Zajac said that an interesting challenge posed by the trial was the fact that he had to convince the jury to overlook the fact that the defendant helped in curing Feldman of his cancer.

"I asked the jury in my opening speech to take upon themselves a challenge," Zajac said, "to focus on the circumstances of this surgery - if the surgeon should have been able to protect the laryngeal nerve. I was very pleased that the jury was able to accept and meet that challenge."

Zajac said he used res ipsa loquitur, "the thing speaks for itself," in establishing liability.

"Our expert, who was a board-certified ear, nose and throat surgeon, testified that under the particular circumstances of this surgery, injury to left laryngeal nerve could only occur if there was an error in surgical technique," Zajac said.
Defense counsel George L. Young of Wright, Young & McGilvery said that the jury didn't fully understand the issue.

"It is statistically reported in the literature that about 17 to 18 percent of these surgeries will involve complications," said Young. "The jury didn't understand that you could have complications without having negligence."

"I think the verdict is high, and we're working on our post-trial motions right now," Young said yesterday.

Zajac said he was unable to speak with any of the jurors after the trial, but thought they believed the doctor could have protected the nerve from damage.

"They must have also found that the plaintiff and his wife to be highly credible in their testimony about Mr. Feldman's commitment and passion to his professional career which he was no longer able to pursue," said Zajac.

Delay damages would add on a little over $1.3 million to the amount awarded.