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Smith v. Cotter4/30/1991
Per Curiam:
This is a medical malpractice action. After a bench trial, the district court awarded damages against Dr. Lindsay Smith because of his negligent failure to obtain James Cotter's informed consent to a surgical operation, a total thyroidectomy.
Cotter claims that Dr. Smith failed to inform him that he could suffer paralyzed vocal cords and an obstructed airway as a complication of the surgery. Dr. Smith claims that he told Cotter of the risk and that, even if he did not, he was not required by professional standards to tell Cotter of this risk. There is ample evidence to support the trial court's conclusion that Dr. Smith failed to inform Cotter of the risk, that he should have done so, and that this failure was the cause of Cotter's injuries. We therefore affirm the judgment of the trial court.
Cotter suffered thyroid problems for several years and was treated by Dr. Robert Fredericks, who was unable to relieve the symptoms through conservative medical treatment and medication. Dr. Fredericks believed that Cotter might require a total thyroidectomy, and, for this reason, he referred Cotter to Dr. Smith, a general surgeon. On January 16, 1985, Mr. and Mrs. Cotter met with Dr. Smith. Dr. Smith noted in his office chart that he had discussed some of the complications associated with a
[107 Nev. 267, Page 270]
total thyroidectomy namely, “infection, bleeding, recurrent laryngeal nerves and parathyroids.” The trial judge concluded that neither Mr. nor Mrs. Cotter came away from that meeting with any idea that there was risk of “total vocal cord paralysis, or permanent voice impairment or permanent airway obstruction.” Cotter elected to have surgery, and he was operated on, on January 21, 1985. Following the surgery, Cotter could only speak in a whisper. Initially this did not alarm Cotter or Dr. Smith. Later, Cotter was seen by Dr. Fredericks, Dr. Dooley, an ear, nose and throat specialist, and a speech pathologist, Dr. McFarlane, who started to become alarmed because Cotter was still not able to speak properly. In March of 1985, Cotter was referred to a larynx expert, Dr. Dedo, who concluded that during surgery Cotter sustained an insult to the bilateral recurrent laryngeal nerve resulting in paralysis. The district court concluded from the medical evidence that Cotter could not close his vocal cords to the degree required for normal speech nor could he open his vocal cords to the degree require for normal breathing.
By mid-summer of 1985, Cotter's voice had begun to recover. By the fall some experts, including Dr. McFarlane, believed the injured nerves were showing signs of recovery. Dr. Dedo, on the other hand, attributed the improvement to an expected atrophying process which causes the cords to close slowly into a position approaching that which was necessary for phonation. In March of 1986, Dr. Dedo recommended a tracheotomy because Cotter's airway was obstructed and his vocal cords did not show a return of function. On March 12, 1986, Cotter was examined by Dr. Horgan, a board certified ear, nose and throat doctor in Carson City, who found Cotter's airway obstructed due to vocal cord paralysis. Dr. Horgan agreed with Dr. Dedo's evaluation. Dr. Horgan performed a tracheotomy on Cotter an April 15, 1986.
The district court found that since April 15, 1986, Cotter has suffered a permanent disability as a result of paralyzed vocal cords, an obstructed airway and placement of the tracheotomy tube. Based upon these findings of fact the district court found that Dr. Smith failed to obtain Cotter's informed consent to a total thyroidectomy. The court found that the standard of care for a board certified general surgeon
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