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Improper Placement of Contraindicated Substance in Patient’s Ear Causing Permanent Hearing Loss

Schilling Case

Case Summary

Mrs. Schilling was seen by Dr. McDonald in her office for a right ear infection. Dr. McDonald intended to rinse Mrs. Schilling’s ear with peroxide, but erroneously placed phenol, a very caustic agent, in her ear. The phenol caused Mrs. Schilling to immediately experience severe pain and ultimately destroyed ¾ of Mrs. Schilling’s eardrum. Mrs. Schilling was required to undergo surgery to repair her eardrum and save her hearing. However, she was ultimately left with permanent hearing loss in her right ear.

Case Details

Mrs. Schilling was first seen by Dr. McDonald on February 7, 2018 for complaints of a possible right ear infection. Testing was performed on Mrs. Schilling, which did in fact confirm an ear infection. Dr. McDonald prescribed Mrs. Schilling a topical cream and ear drops for her ear infection in addition to having a CT scan performed of her temporal bones. On February 17, 2018, a CT scan of Mrs. Schilling’s temporal bone showed very mild right ossicular erosion and a thickened right tympanic membrane with a tiny amount of abnormal soft tissue in the right Prussak’s Space. A follow-up appointment was scheduled for February 21, 2018.

At the February 21 appointment, Dr. McDonald intended to rinse Mrs. Schilling’s eardrum out with peroxide to loosen the debris and then suction it out. However, instead of picking up the peroxide, Dr. McDonald carelessly placed phenol into Mrs. Schilling’s right ear, which is contraindicated due to its caustic effects on tissues. Mrs. Schilling immediately experienced pain and felt a severe burning in her ear. When Dr. McDonald realized her error, she attempted to flush the inside of Mrs. Schilling’s ear out with water and rinse off the phenol that was on the outside of her ear. As a result of Dr. McDonald’s error, the entire outside of Mrs. Schilling’s ear turned red and blistered.

On a follow-up office visit on March 7, 2018, Dr. McDonald commented that Mrs. Schilling’s ear was improving, although Mrs. Schilling did not feel any improvement and was experiencing increased right ear hearing loss and right ear pain. Another follow-up office visit was scheduled for a month later, but Mrs. Schilling sought an alternative opinion and made an appointment with Dr. Charles.

Dr. Charles found that 75% of Mrs. Schilling’s right tympanic membrane was destroyed from the contraindicated substance, phenol, and confirmed that Mrs. Schilling had suffered hearing loss in her injured ear. On July 3, 2018, Mrs. Schilling underwent a Right Lateral Fascial Graft Tympanoplasty by Dr. Charles in an attempt to repair her injured tympanic membrane. Unfortunately, the surgery was unable to restore Mrs. Schilling’s hearing. Mrs. Schilling was left with significant permanent hearing loss in her right ear and permanent scarring around her external right ear from the burns caused by the phenol and the incision from her surgery.

Lawsuit

Due to the clear negligence of Dr. McDonald, and in an attempt to avoid the expense and time that litigation demands, we attempted to resolve the case prior to the filing of a lawsuit. We sent Dr. McDonald’s insurance company a demand letter, which went ignored. It was at that point that we filed a complaint to initiate a lawsuit on behalf of Mr. and Mrs. Schilling against Dr. McDonald and her practice.

We conducted written discovery, which is an exchange of written questions and answers between Counsel, but we ran into difficulties when we tried to depose the defendant, Dr. McDonald. After months of the defendant avoiding a deposition and refusing to provide dates that she was available, we were finally able to schedule a date for the deposition. However, the deposition was cancelled by the defendant the night before the deposition was scheduled to take place. After the defendant cancelled the deposition, we were back to square one trying to reschedule the deposition.

As we experience in most of our cases, the defendant’s Counsel was being evasive and failed to provide dates that Dr. McDonald was available to be deposed. Months had passed and no progress was made in rescheduling Dr. McDonald’s deposition. We had good reason to believe that Dr. McDonald was not interested in being deposed and did not want to have to explain the clear error she made by placing a contraindicated substance in her patient’s ear.

There was seemingly no defense to this case as Dr. McDonald even noted in Mrs. Schilling’s medical record that she “inadvertently” placed phenol in Mrs. Schilling’s ear canal. However, defense Counsel intended to argue that even if Dr. McDonald did negligently place phenol in Mrs. Schilling’s ear, her damages were not that bad, and she only had minimal hearing loss, which she would have had at her age regardless. This is a common defense we often see in our cases; the defendant argues that the damages are not worthy of recovery even if there is negligent conduct from the defendant physician.

Though defendants often try to avoid the need to be deposed, or at least put it off as long as possible, it is imperative in each of our cases to hear the defendant’s story and to hear the defendant’s explanation for how the negligence occurred. Therefore, we filed a Motion to Compel the deposition of Dr. McDonald, which essentially asks the court to order the defendant to appear for a deposition when the defendant refuses to do so.

The Motion to Compel and the threat of a deposition prompted a settlement offer from the defendant. The initial offer was very low, but after extensive negotiation with defense Counsel, we were able to reach a resolution that Mrs. Schilling was satisfied with.

Result

Prior to trial, we reached an agreement to settle this case for a substantial amount.