Montgomery County Jury Awards $943,000 to Man Left Brain-Injured in Revision Ear Surgery

In 1983, Billy Karl Boone had a mastoidectomy to remove a cholesteatoma, a growth behind the left middle ear. During that operation the surgeon accidentally drilled a hole through his skull and exposed the dura, the membrane that covers the brain. Sixteen years later, in November 1999, his primary care doctor sent him to Seth M. Goldberg, M.D., an otolaryngologist in Rockville, Maryland, for an ear infection and a pus-like drainage. Goldberg found a second cholesteatoma and told him it could become life-threatening.

On January 6, 2000, Goldberg performed an outpatient revisionary mastoidectomy. The next day Boone had trouble reading, remembering names and recalling words. An MRI and a CT scan showed hemorrhaging in his brain and an apparent opening in the skull at the site of the bleeding.

Boone sued in the Circuit Court for Montgomery County in December 2002. He alleged that Goldberg had punctured his brain with a surgical instrument, causing permanent brain damage. He also alleged that Goldberg never told him that the old hole in the dura made the operation more complex than a standard revision, that it carried a risk of brain damage, or that more experienced surgeons were available in the region. Goldberg had performed one revisionary mastoidectomy in the previous three years.

Patrick A. Malone, then at Stein, Mitchell & Mezines in Washington, D.C., represented Boone, with Denis C. Mitchell on the briefs. At trial, Boone called several medical experts who testified that Goldberg should have disclosed the risk of brain damage and should have referred the case to a more experienced surgeon. The defense called its own experts, including a neuropsychologist who had examined Boone. After two days of deliberation, the jury found for Boone on the negligence and informed consent questions. It awarded $113,000 for lost earning capacity, $355,000 for past and future medical expenses and $475,000 for non-economic damages.

Goldberg's post-trial motions were denied, and he appealed. He argued that the informed consent claim should never have reached the jury and that the judge should have declared a mistrial after Boone's counsel cross-examined the neuropsychologist about the expert's testimony in a well-known local criminal case. The Court of Special Appeals agreed in part in 2006, vacating the judgment, directing judgment for the doctor on informed consent and ordering a new trial on damages.

On December 12, 2006, the Court of Appeals of Maryland reversed. It held that the trial judge did not abuse his discretion in refusing a mistrial or in submitting the informed consent instruction to the jury, and it directed the Court of Special Appeals to affirm the Montgomery County judgment. Three judges dissented on the mistrial question. The $943,000 verdict stood in full.