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Allan v. United States

United States District Court, E.D. Virginia, Alexandria Division

July 23, 2019

APRIL ALLAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         April Allan ("Allan" or "plaintiff) brings this medical malpractice action against the United States of America (the "Government" or "defendant") under the Federal Tort Claims Act ("FTCA"), ch. 753, tit. IV, 60 Stat. 812, 842-47 (1946) (codified as amended at 28 U.S.C. §§ 2671-2680, 1346), claiming that her doctors at the U.S. Department of Defense-operated Fort Belvoir Community Hospital breached the standard of care during a total thyroidectomy she underwent as part of treatment for papillary thyroid carcinoma. She argues that as a result of this alleged malpractice, her left recurrent laryngeal nerve was transected, leaving her with total or near-total paralysis of both vocal folds, resulting in a compromised airway, tracheostomy dependence, and a number of other physical and personal problems. She also argues that during the surgery her doctors negligently removed or damaged her parathyroid glands to such an extent that she has permanent hypoparathyroidism. Although Allan claims that her damages substantially exceed Virginia's statutory limit for medical malpractice claims, she seeks an award of that $2.2 million limit for past and future medical expenses and nonpecuniary damages. In response, the Government argues that it is not liable to Allan because her doctors acted within the applicable standard of care and that Allan's damages calculation is speculative, overinflated, and inconsistent with the evidence.

         During a three-day bench trial, the Court heard testimony from five lay witnesses, including plaintiff and her husband, and from seven qualified experts. This Memorandum Opinion constitutes the Court's factual findings and legal conclusions. As detailed below, plaintiff has established by a preponderance of the evidence that defendant is liable to her in the amount of $2.2 million as a result of the malpractice committed by her doctors.

         I. FACTUAL FINDINGS[1]

         A. The Thyroid and Parathyroid Glands

         As depicted below, the thyroid is a butterfly-shaped gland located in the neck in front of (or "anterior to") the larynx (colloquially known as the voice box) and the trachea (the windpipe). It is composed of two lobes lying on each side of the trachea, which are connected by a narrow strip of thyroid tissue known as the isthmus. The thyroid gland is rich with blood vessels and tends to be deep red or maroon in color. A key part of the body's endocrine system, the thyroid gland secretes several hormones essential for regulating metabolism and growth.

         (Image Omitted)

         PLEX 131.

         Despite the apparent similarity in their names, the parathyroid glands differ from the thyroid in both appearance and function. Most people have four parathyroid glands, although some have as few as three and others have more than four. These glands secrete parathyroid hormone ("PTH"), which maintains the body's calcium and phosphorus levels. The parathyroid glands are small, typically the size of a large grain of rice or small bean, and are usually located directly behind the upper (or "superior') and lower (or "inferior") portions of the left and right thyroid lobes. See PLEX 131, supra (showing the parathyroid glands in the lower right-hand portion of the diagram). On occasion, one or more of the parathyroid glands may develop within the thyroid capsule itself. Although the parathyroid glands are difficult to locate by touch and often look like fat globules, they are distinguishable by their yellow or orange color and the presence of a blood supply.

         Parathyroid cells themselves are not susceptible to thyroid cancer; however, on occasion a parathyroid gland may become physically intertwined (or "involved") with extracapsular thyroid cancer cells. Additionally, parathyroid glands may become cut off from their blood supply (or "devascularized") either temporarily or permanently as a result of surgery or trauma in the neck. When devascularized, parathyroid glands tend to take on a duskier color and will no longer function properly. If a parathyroid gland is unintentionally devascularized or removed, it may be cut up and reimplanted into muscular tissue and will typically resume partial or total functioning once a new blood supply develops. Blood testing can provide accurate results in minutes indicating whether a patient's PTH levels are normal or deficient in the wake of surgery; these results can prompt surgeons to search for unintentionally removed or devascularized glands and to reimplant any such glands to prevent hypoparathyroidism.

         The human body does not need all four parathyroid glands to maintain normal calcium and phosphorus levels. Normal levels can be maintained with as little as one or even one-half of one parathyroid gland. But if all parathyroid glands are removed or devascularized, the resulting condition of deficient PTH is known as hypoparathyroidism. Hypoparathyroidism may result in muscle cramping and fatigue and puts patients at heightened risk for developing osteoporosis or brittle bone disease, cardiovascular issues, and even calcification of the basal ganglia in the cerebrum. Hypoparathyroidism is typically treated with supplemental calcium and natural or synthetic vitamin D and requires ongoing monitoring to ensure that calcium and phosphorus levels remain within an acceptable range.

         B. The Recurrent Laryngeal Nerves

         The recurrent laryngeal nerves control most of the intrinsic muscles of the larynx, including the vocal folds, or cords, that operate a person's airway at the glottis and that vibrate to produce speech. There are two such nerves, one located on the right and the other on the left side of the larynx behind the thyroid gland. The nerves are "recurrent" because they emanate from the brainstem as part of the vagus nerve and descend along the trachea before reversing direction and ascending past the thyroid into the larynx. As shown below:

         (Image Omitted)

         PLEX 142. Injury to or transection of a recurrent laryngeal nerve can result in total or partial paresis or paralysis[2] of the corresponding vocal fold served by that nerve. Damage to both recurrent laryngeal nerves can lead to paralysis or paresis of both vocal folds (that is, "bilateral" immobility), resulting in severe consequences such as difficulty breathing, speaking, and swallowing.

         If the vocal fold immobility is severe, a tracheostomy may be required. A tracheostomy is a procedure in which an opening (or "stoma") is created in the neck to bypass upper portions of the airway. A tube is then inserted into the opening to facilitate breathing and to protect the trachea and lungs from aspirating foreign objects or irritants. A patient with a tracheostomy tube may elect to cap the tube entirely, allowing herself to breathe through the normal airway, or partially, as with a one-way Passy-Muir valve that opens when a patient inhales and closes when the patient exhales or speaks.

         Because the recurrent laryngeal nerves are vital to breathing, swallowing, and speaking, surgeons operating in the neck must identify those nerves to minimize injury. There are several established ways of doing so. One way is by appearance: The recurrent laryngeal nerves are typically white, vertical, and roughly as thin as angel hair pasta (roughly 1 -2 millimeters wide) and may be identified by a network of blood vessels on the outer surface of the nerve. Another way is through physical touch: Unlike arteries, the recurrent laryngeal nerves do not pulsate. Still another way is to identify the nerves by using an intraoperative nerve monitor: The structure believed to be a nerve is stimulated at low amperage with a handheld device known as a Prass probe, and the corresponding muscles are measured for response or electrical activity on a monitor. Because the recurrent laryngeal nerves are small, located behind the thyroid gland, and sometimes feature smaller offshoots, bifurcations, or branches, it is not always possible to identify the nerves with absolute certainty. Indeed, experts estimate that accidental transections or injuries to a recurrent laryngeal nerve occur somewhere in the range of 1-5% of thyroidectomies, and many of those accidents are due to misidentification of the nerve.

         C. Thyroid Cancer and Surgery

         Several types of cancer can affect thyroid tissue, the most common of which is papillary thyroid carcinoma. Papillary thyroid carcinoma is a differentiated and typically slow-moving (or "indolent") form of cancer that develops from follicular cells and is often limited to one side of the thyroid. Although usually contained within the thyroid gland itself, papillary thyroid carcinoma may sometimes breach the thyroid capsule and extend beyond the gland into the surrounding soft tissues of the neck (that is, become "extracapsular"), and may even involve the lymph nodes. Generally, a diagnosis of papillary thyroid carcinoma is associated with a very good prognosis because the affected thyroid tissue can be surgically removed and any remaining malignant cells can typically be destroyed (or "ablated") with postoperative radioactive iodine treatment.

         Several surgical options are available to doctors treating thyroid cancer. Three are relevant here. The least invasive is known as a lobectomy or hemithyroidectomy, in which only one of the lobes of the thyroid is removed. On the other end of the spectrum is the total thyroidectomy, which involves removal of all of the thyroid tissue. Between these two extremes is a subtotal or near-total thyroidectomy, in which a small sliver of thyroid tissue is left behind, either to preserve thyroid function or to protect other important structures in the area. No matter the procedure, a patient who has had all or part of her thyroid gland removed will likely be prescribed hormone replacement therapy, which is generally effective in treating hypothyroidism and regulating the body's hormone levels.

         D. Allan's Thyroid Cancer, Thyroidectomy, and Subsequent Treatment

         Allan is a 37-year-old woman who, before her thyroid surgery, led a physically active life with few medical issues.[3] In 2005, she married Joshua Allan ("Mr. Allan"), an active-duty Navy servicemember, and the couple proceeded to have four children, two girls and two boys. Their oldest daughter is autistic, and their sons have attention-deficit/hyperactivity disorder. To ensure their children were receiving an appropriate education, the Allans opted for homeschooling. As a result, plaintiff has been both a housewife and a teacher.

         1. Initial Imaging and Diagnosis

         In early 2015, Allan underwent a magnetic resonance imaging ("MRJ") scan for pituitary issues and was found to have "an enlarged thyroid gland." See PLEX 5, at 136. On May 16, 2015, she underwent an ultrasound scan of her neck, which revealed a 4.4-centimeter ("cm") mass in the area of her right thyroid. The scan also revealed a "0.5 cm left lobe nodule," which was less disconcerting than the mass on the right side. See Id. at 138; Bench Trial Tr. [Dkt. Nos. 82-83] ("Tr.") 469 (indicating that the mass seemed to be "low risk" and unlikely to be malignant). On June 4, plaintiff underwent a computed tomography ("CT") scan of the area, which confirmed the presence of an approximately 4 cm "[i]rregular heterogeneous mass ... extending posteriorly and ... fairly extrinsic to the thyroid tissue" in her right thyroid lobe. PLEX 5, at 139-40. The CT scan could not confirm the small, half-centimeter nodule on the left lobe that had been visible on the ultrasound reading. See Id. at 140. Based on the size of the mass in Allan's right lobe, the radiologist recommended consultation "with ENT[4] and/or endocrinology." Id.

         Allan was referred to Dr. Caroline Kolb ("Dr. Kolb"), an attending otolaryngologist at Fort Belvoir Community Hospital ("Fort Belvoir"), which is operated by the U.S. Department of Defense to provide healthcare to military servicemembers and their families. When Dr. Kolb first saw Allan on June 15, 2015, she observed that Allan had no history of cancer and, despite the 4.4 cm mass in the right lobe of her thyroid, was not experiencing shortness of breath, difficulty swallowing, neck pain, or swollen glands. Dr. Kolb scheduled Allan for a fine needle aspiration ("FN A") biopsy to determine whether the mass was malignant.[5] Even before the FN A procedure had been performed, Dr. Kolb opined in her notes that Allan would likely have to undergo some sort of surgery, and she reported that Allan had requested a right lobectomy regardless of the results of the biopsy. See DEX 73, at 866 ("Either way, [patient] desires lobectomy.").

         Dr. Kolb performed the FN A biopsy on June 18, 2015. Her notes reflect that Allan was anxious before the procedure and found it to be excruciating. When Allan's husband was called into the clinical room to comfort her, he observed her "hyperventilating, [with] blood streaming from her neck." PLEX 173, at 37. Despite those difficulties, Dr. Kolb was able to collect an adequate specimen. The laboratory results came back one week later and indicated that the sample tested positive for papillary thyroid carcinoma.[6]

         2. Preoperative Consultations and Consent

         Normally, either immediately after performing an FNA biopsy or at some point before a surgical procedure of the sort Allan was facing, Dr. Kolb would have performed a flexible fiberoptic laryngoscopy. In that procedure, a small flexible telescope is passed through the patient's nose down into the airway. Live imaging from the laryngoscopy allows the performing physician to examine the patient's airway and larynx to see whether the vocal folds are appropriately moving apart (that is, "abducting") to allow for the passage of air and coming together ("adducting") to assist with swallowing and sound production. Such a procedure is particularly useful where there is reason to believe that one or more of the vocal cords may be less than fully functional. In Allan's case, preoperative imaging studies indicated that the mass on her right side extended beyond the thyroid capsule into the area of the right recurrent laryngeal nerve, suggesting that her right vocal fold might be compromised. But Dr. Kolb did not perform a laryngoscopy on Allan at any point before her surgery. In Dr. Kolb's view, Allan's traumatic experience during the FNA biopsy had exacerbated preexisting anxiety and left Allan wary of additional procedures.[7] Given these concerns, Dr. Kolb decided to give Allan the choice of whether to have a laryngoscopy. Although the parties disagree about exactly what, if anything, Dr. Kolb told Allan about the procedure before the surgery, [8] they agree that ultimately, no presurgical laryngoscopy was performed.

         Dr. Kolb originally envisioned an August 2015 surgery date, explaining to Allan and her husband that the cancer was very slow-growing and did not present an immediate emergency. See PLEX 173, at 35-36. Allan and her husband were "shocked" that cancer would not require more immediate treatment and requested an earlier date. Id. Eventually, Dr. Kolb scheduled the surgery for July 21, 2015.

         On July 7, 2015, Allan met with several endocrinologists, including Dr. Mohamed Shakir ("Dr. Shakir").[9] Her doctors agreed that based on the available evidence-particularly considering her age and the lack of evidence of any metastasis[10]-Allan's cancer was considered as "Stage I." See PLEX 71, at 853. Based on her preoperative scans and the results of her FN A biopsy, Allan's doctors recommended that she undergo a total thyroidectomy to be followed by postoperative radioactive iodine treatment. DEX 71, at 853. The doctors' notes indicate that they talked with Allan about "treatment for thyroid cancer" and discussed "[complications ... includ[ing] hypothyroidism, hypoparathyroidism, vocal cord paralysis, and perioperative death." Id. The notes do not indicate whether the doctors ever discussed the option of having a subtotal thyroidectomy or any other alternative procedure with Allan, but Dr. Shakir testified at trial that he considered a total thyroidectomy to be essentially an automatic recommendation given the parameters of Allan's case.

         Allan saw Dr. Kolb again on July 17, 2015-four days before her total thyroidectomy was scheduled. Dr. Kolb's notes indicate that she spoke with Allan about the "risks, benefits, indications and alternatives" to the total thyroidectomy. DEX 70, at 844. Those risks included injury to the recurrent laryngeal nerves, hypocalcemia, airway obstruction, and the need for further surgery. Among the identified alternatives to surgery were observation, ablation (presumably with radioactive iodine treatment), and a hemi- rather than a total thyroidectomy.[11]Id. Dr. Kolb's notes record that Allan "expressed understanding of the counseling" she had provided "and desire[d] to proceed with surgery." Id.

         On the same day, Allan signed a Request for Administration of Anesthesia and for Performance of Operations and Other Procedures. DEX 124. As originally typed out, the procedure described on the form was "[r]emoval of all or part of the thyroid gland"; however, Dr. Kolb struck out the words "or part" and initialed the change. The form advised Allan that the risks involved in her total thyroidectomy included "bleeding, infection, hematoma, seroma, airway compromise with [a] need for [a] tracheostomy, voice changes, nerve damage, low calcium, scarring, [a] need for thyroid replacement hormones and [a] need for further surgery." Id. Dr. Kolb signed the form indicating that she had "counseled [Allan] as to the nature of the proposed procedure(s), attendant risks involved, and expected result," and Allan signed the form indicating that she "understood] the nature of the proposed procedure(s), attendant risks involved, and expected results." Id. Although Allan acknowledges that the form bears her signature, she claims she cannot remember whether Dr. Kolb actually administered any of the counseling mentioned on the form. For his part, Mr. Allan recalls learning that there were risks including "injuries to the vocal folds and to the nerves," but he also recalls being told that those injuries were "extremely unlikely to occur." PLEX 173, at 65.

         3. The Total Thyroidectomy

         Allan underwent surgery on July 21, 2015. Dr. Kolb served as the attending physician and was assisted by Dr. Ryan George ("Dr. George"), a chief resident in his fifth year who was approximately two months away from finishing his residency. Dr. George had not treated Allan before the surgery; in fact, no witness who testified at trial could say with certainty whether Dr. George had even met Allan beforehand. At the time of Allan's procedure, Dr. Kolb had performed approximately 160 thyroidectomies-40 as the primary or attending physician-and Dr. George had assisted as a resident on roughly 60 such procedures.[12] Although Dr. Kolb had not worked with Dr. George on a thyroidectomy before, Dr. Kolb spoke with another attending physician who had and was told Dr. George had "excellent hands" and was adept at complex surgeries. Tr. 417.

         The surgery began on the right lobe of the thyroid, which was the side containing the large mass believed to be cancerous. Dr. Kolb took the lead role and the scalpel, with Dr. George assisting as needed. As Dr. Kolb began to dissect around the right lobe, it became clear that the cancerous nodule had reached beyond "the posterior inferior aspect of the gland and was extending into the paratracheal space." PLEX 9, at 17. As the dissection continued, Drs. Kolb and George observed that the mass was "grossly invading" the right recurrent laryngeal nerve. Id. Dr. Kolb attempted to remove as much of the mass as possible while preserving the right nerve; she even carved into the surface of the nerve in a few locations to remove cancerous cells. Ultimately, to preserve the nerve's functioning, Dr. Kolb left behind trace amounts of cancerous cells embedded in the nerve, believing that these could be effectively destroyed with postoperative radioactive iodine treatment. Dr. Kolb also decided to remove the right inferior parathyroid gland because it was "grossly involved with [the] tumor." Id. at 16.

         Dr. Kolb testified at trial that at this point in the surgery, it would have been her practice to stimulate the right recurrent laryngeal nerve with a Prass probe to gauge whether it was functioning and to examine the removed tissue to see whether any additional parathyroid glands had been inadvertently removed during the dissection. Yet Dr. Kolb had no specific memory of actually following that practice in Allan's case, and neither of those actions was recorded in the operative report.

         When the doctors switched to the left side of the thyroid, Dr. George took over the actual surgery, with Dr. Kolb performing a supervisory role. After the left thyroid capsule had been exposed, Dr. George tried to locate the left recurrent laryngeal nerve. He identified "a structure consistent with the ... nerve" based on its appearance and location. PLEX 9, at 17. He stimulated that structure at low amperage with the Prass probe, and it responded. Believing he had located the nerve, Dr. George proceeded to attempt to dissect the left thyroid lobe. During that dissection, Dr. Kolb noticed something alarming: a nerve-like structure with what appeared to be a cleanly cut end. Dr. Kolb took over for Dr. George and quickly discovered that he had transected the left recurrent laryngeal nerve. Once the transected ends and remaining structure of the left nerve had been identified, Dr. Kolb removed the remainder of the left lobe and preserved the specimen for the postoperative biopsy. She then attempted microscopic reconnection (or "reanastomosis") of the nerve-a procedure she had never attempted before. The attempted reanastomosis was unsuccessful, even though the operative report written by Dr. George and signed by Dr. Kolb describes the nerve as having been "repaired" with nylon sutures, see id.

         Dr. Kolb performed a few final tests before the surgery was complete. First, she stimulated both recurrent laryngeal nerves with the Prass probe. The right nerve returned a "weak" signal. PLEX 9, at 17. The left nerve did not respond at all. Dr. Kolb closed the incision, removed Allan's breathing tube, and performed a flexible laryngoscopy, during which she observed "significant vocal cord edema"-that is, swelling-"and minimal vocal fold movement." Id. Dr. Kolb wanted "to give [Allan] time for [the] edema to resolve to prevent a possible need for [a] tracheostomy." Id. Accordingly, she opted for reintubation-that is, she reinserted the endotracheal tube to assist Allan's breathing-and transferred Allan to the intensive care unit ("ICU").

         During her postoperative visit with Allan's family, Dr. Kolb explained that Dr. George had accidentally transected Allan's left recurrent laryngeal nerve during the procedure. See PLEX 173, at 39-40. Mr. Allan recalls Dr. Kolb expressing that she was "very sorry" about what had happened, that she "felt responsible," and that she had spent hours trying to repair the transected nerve in vain. Id. at 40. Dr. Kolb also told Allan's family that in light of the trauma to the right nerve and the transection of the left nerve, Allan might have difficulty breathing and swallowing and would be kept in the ICU overnight for observation. Id. at 42.

         The tissue removed during the thyroidectomy was sent to the laboratory for examination, and the results were returned a few days later. The final diagnosis confirmed what the preoperative tests had indicated: Allan's right thyroid lobe had contained an approximately 3- to 4 cm mass of papillary carcinoma of the "classical" variant. PLEX 10, at 100. The carcinoma was classified as "pT4a." Id. at 101. The "p" refers to "papillary," the most common form of thyroid cancer, and "T4a" to a tumor "extending beyond the thyroid capsule to invade subcutaneous soft tissues, larynx, trachea, esophagus, or recurrent laryngeal nerve." PLEX 152, at 89 (seventh edition of the American Joint Committee on Cancer's ("AJCC") Cancer Staging Manual). Because plaintiffs cancer was papillary and because she was under 45, her cancer was classified as "Stage I"-the most favorable prognostic group. Id; see also id. at 90 fig.8.1 (showing five-year observed and relative survival rates by stage). Although the cancerous mass had extended beyond the thyroid capsule "extensive[ly]," there was no evidence of lymphatic invasion or metastasis. See PLEX 10, at 100.

         The postoperative biopsy also revealed that the sample contained two parathyroid glands, indicating that Drs. Kolb and George had unintentionally removed a second gland at an unknown point in the procedure. Dr. Kolb was unaware of a second removed gland and could not explain at what stage it had been removed. After the surgery, Allan's PTH levels-which had been normal before the operation-plummeted to hypoparathyroidal levels, indicating that all of her parathyroid glands had either been removed or critically damaged as a result of the surgery.

         4. The First Tracheostomy

         Once Allan was brought out of general anesthesia, her endotracheal tube was removed, and Dr. Kolb performed a flexible laryngoscopy to examine Allan's vocal folds, which were swollen and immobile. Dr. Kolb determined that a tracheostomy was necessary to "safely maintain [Allan's] airway." PLEX 11, at 66. Because Allan was still unconscious, Dr. Kolb obtained consent from Mr. Allan and performed the tracheostomy. Id.

         Nearly 24 hours after surgery, Allan was finally revived. She described being horrified by her postoperative condition. See Tr. 259 ("I thought I was dead."). Her arms were tied to the side of her bed, she felt severe pain, and she had a tracheostomy. Allan recalls a "revolving door of doctors," id, coming into her room to apologize for what had happened during the surgery. Among those doctors was Dr. Kolb but not Dr. George, who had been instructed not to visit plaintiffs recovery room.

         A speech pathologist who examined Allan later in the afternoon on July 22, 2015 observed that Allan was noticeably "anxious" and concerned about her tracheostomy. PLEX 12, at 76; see also DEX 67, at 804 (reporting that Allan was "experiencing] some panic-like symptoms" related to her inability to breathe freely and speak clearly). Initially, she could communicate only "by mouthing words and sentences." Id. The speech pathologist placed a Passy-Muir valve-essentially a one-way valve that opens upon inhalation and closes upon exhalation or speaking-in her tracheostomy, which enabled her to speak, albeit "with hoarse, breathy vocal quality [and] reduced vocal intensity at the sentence level." Id. But the Passy-Muir valve also "resulted in [an] increase in spontaneous swallows," and after eight minutes Allan asked that it be removed so she could rest. Id.

         Dr. Kolb next saw Allan on July 28, 2015, a week after her surgery and the same day Allan was finally discharged. Dr. Kolb observed that Allan was "less breathy" and had "started to get her voice back" but remained in "acute distress." PLEX 14, at 186. She also observed that the site of Allan's tracheostomy was exhibiting "wound breakdown" and had "granulation tissue," which is painful connective tissue and blood vessels that form on the surface of a wound, often requiring cauterization with silver nitrate. Id. at 187. A flexible laryngoscopy showed that Allan's vocal folds were "abnormal." Id. The right fold featured only "small movements on adduction" with "minimal abduction," indicating that although the right nerve was "intact," it was "stunned." Id. Allan's left fold, on the other hand, was in a state of "total paresis." Id. As a result, Dr. Kolb concluded that Allan had bilateral vocal fold paresis and "d[id] not recommend removal of [the] tracheostomy]" at that time. Id.

         On August 11, 2015, Allan saw Dr. Kolb and reported that her vocal volume was improving; that she had kept her tracheostomy capped, or closed, since her last visit; that her wound was healing well; and that she was experiencing "[n]o difficulty breathing, even with climbing stairs." PLEX 17, at 206. Although Dr. Kolb observed, after having performed a flexible laryngoscopy, that Allan's right vocal fold still had "minimal abduction" and that her left fold "remain[ed] paretic," Id. at 207, Dr. Kolb felt that Allan's physical symptoms were encouraging and agreed with Allan's request to have the tracheostomy removed. During a follow-up visit a week later, Dr. Kolb recorded that the tracheostomy wound was healing nicely and that Allan overall was "doing very well," with "[n]o difficulty breathing, even with climbing stairs." DEX 58, at 738.[13]

         5. Cordotomy and Second Tracheostomy

         It is not uncommon, after a total thyroidectomy or injury to a recurrent laryngeal nerve, for a patient's vocal fold functioning to change in the weeks or months following surgery. In Allan's case, her functioning worsened, and she began having increased difficulty breathing.

         Allan saw another otolaryngologist, Dr. Orestes, on January 28, 2016, complaining of shortness of breath, labored breathing after physical efforts, and "loud snoring [and] apnea symptoms at night." PLEX 26, at 309. Dr. Orestes led Allan through a series of tests, including a controlled exercise test on a treadmill, during which he observed that her breathing became labored and marked with stridor. Id. at 310-11. Dr. Orestes concluded that as a result of Allan's "bilateral vocal fold paralysis following [her] thyroidectomy," it was "[l]ikely" that her "maximum glottic aperature [sic]"-that is, the opening between her vocal folds-"does not support exercises due to [her] lack of ability to take in air." Id. at 311. He also opined that this glottic restriction was "likely contributing to her new onset sleep apnea." Id. Dr. Orestes recommended that Allan undergo a sleep study and discussed other potential treatment options, informing Allan that some of those procedures would "require a temporary tracheostomy." Id. On February 3, 2016, Allan underwent a home sleep study and was diagnosed with obstructive sleep apnea. PLEX 28, at 325. Allan's breathing and sleeping issues continued throughout the month of February 2016 and, as of early March, she was increasingly "concerned about not being able to breathe." DEX 49, at 600.

         Because of her difficulty breathing and sleeping, Allan decided to undergo a procedure known as a cordotomy, in which a portion of one of her vocal folds would be removed to widen the glottic aperture to improve her breathing. That procedure was scheduled for March 14, 2016. On March 13, Allan went to the emergency room complaining that her shortness of breath had been "getting progressively worse." PLEX 30, at 2. Hospital records reflect that she was "audibl[y] wheezing" and had "difficulty speakin [sic] in complete sentences." Id.; see also PLEX 31, at 7 (reporting that Allan had "increasing dyspnea" even "at rest," was "unable to sleep well at night due to difficulty breathing," and was sometimes "unable to tolerate" the continuous positive airway pressure machine she had received to treat her sleep apnea). She was admitted for an emergency visit and kept in the hospital until her scheduled cordotomy procedure.

         On March 14, 2016, Dr. Orestes performed a left vocal cordotomy and tracheostomy[14] on Allan, removing "a small triangular portion of the vocalis muscle" on her left side. PLEX 32, at 47. Initial signs in the wake of Allan's cordotomy were encouraging. Notes from an appointment with Dr. Kolb one week after the cordotomy reflect that Allan was "doing well [and] breathing comfortably, even with [a] capped tracheostomy]." DEX 45, at 566. Although Allan's voice quality was somewhat "breathy" compared to her preoperative status, Dr. Kolb deemed her overall voice quality to be "adequate" and observed that she was "breathing well." Id. at 565-66. Allan told Dr. Kolb that the procedure improved her breathing "100%."

         Allan's gains were temporary. By September 2017, she began to experience "severe shortness of breath even with the tracheostomy uncapped." PLEX 49, at 641 (notes from a September 22, 2017 visit with Dr. Orestes). The cordotomy procedure also came with its own problems. For example, in the wake of her cordotomy Allan was hospitalized in the intensive care unit with aspiration pneumonia, which occurs when a foreign substance is breathed into the airway or lungs rather than swallowed into the esophagus and stomach. See Tr. 106.

         6. Allan's Current Condition

         Although defendant argues that Allan overstates the lasting effects of her injuries, the evidence clearly shows that most of her postsurgical problems will remain with her for the rest of her life. Allan's tracheostomy has proved to be one of the most troublesome aspects of these ongoing problems. It requires a significant amount of medical equipment and daily care, see PLEX 73 (containing pictures of the many medical devices and materials Allan uses to manage her tracheostomy), which she described at length during her testimony. For example, Allan has to monitor her tracheostomy tube constantly for secretions or mucus. To prevent those materials from falling into her lungs (that is, being "aspirated"), she carries a large suction machine with her at all times. She testified that using that machine can be quite painful, as it involves inserting a tube into her stoma to suck out the mucus or secretions. Allan also relies on devices known as "inner cannulae" to prevent dust, dirt, and other foreign contaminants from getting into her airway through her stoma. The inner cannulae are disposable, and Allan typically must change them several times a day depending on the environment to which she is exposed. Every time she uses medical equipment or replaces any of her devices, she must make sure that everything she needs is sterile and readily accessible and that she has a mirror appropriately positioned to see what she is doing. To sleep, she uncaps her tracheostomy and inserts a long plastic tube connected to a large humidifier machine. The humidifier is noisy and requires Allan to adjust the tube throughout the night to prevent loud gurgling of accumulated water in the tube. Allan must try not to roll over or otherwise disturb the humidifier tube, or else risk aspirating some of the water. Once or twice a month, Allan must change her tracheostomy entirely, a ...


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