Severna Park surgeon acquitted of negligence

October 07, 1992|By Dennis O'Brien | Dennis O'Brien,Staff Writer

Jurors cleared a Severna Park physician yesterday of charges of negligence in his handling of a patient who came to him for nose surgery and suffered brain damage.

A jury of eight women and four men deliberated five hours yesterday before finding that Dr. Scott E. Burgess, an ear, nose and throat specialist, acted with a reasonable standard of care in surgery performed on Kevin Kennelly four years ago.

Mr. Kennelly, a former real estate broker and sales manager for Atlantic Richfield Co.service stations in Annapolis, testified that he has been unable to work since the May 11, 1988, operation at North Arundel Hospital to remove diseased sinus tissue from his nose.

"It still doesn't mean that he didn't do what we said he did," Mr. Kennelly said after the verdict. "It's amazing, just amazing."

Dr. Burgess was not in the court for yesterday's decision.

But his attorney, David Levin, said the verdict was consistent with the findings of a three-member Health Claims Arbitration Panel, which also found no evidence of negligence.

In a five-day trial, jurors learned all about the human nose, as physicians used diagrams, charts and a replica skull to explain how a surgical tool could go into the upper nose and penetrate the brain.

Mr. Kennelly had a persistent cough, post-nasal drip and recurrent headaches when he was referred to Dr. Burgess by a friend in April 1988.

When the problem continued after medication and office visits, Dr. Burgess recommended a bilateral intranasal ethmoidectomy, a procedure to remove Mr. Kennelly's diseased sinus tissue.

But in surgery at North Arundel Hospital, Dr. Burgess went into Mr. Kennelly's upper nasal chambers too deeply, piercing the interior ceiling of the cavity, or ethmoid roof, and removing brain tissue, according to testimony.

The day after the surgery, nurses knew something was wrong when Mr. Kennelly regained consciousness and couldn't remember his name, his daughter's name, or why he was at the hospital.

Medical reports said he was disoriented and "acting goofy."

Mr. Kennelly "forgot how to shave," lost 40 pounds and spent the next month at Johns Hopkins Hospital, where brain surgery revealed he had suffered a stroke, probably caused by the surgery.

Over the next four years, his mental capabilities fluctuated and eventually leveled to the point that he can now drive a car but "has trouble remembering the beginning of a question by the time you get to the end of it," said his attorney, Leo Dunn.

Mr. Dunn, a Greenbelt attorney, asked jurors for an award of $1.5 million.

The case hinged not on the harm done but on the issue of whether Dr. Burgess exercised reasonable care in performing the surgery, the legal standard in such cases.

"Sympathy is not any part of this case,", Mr. Levin, of Annapolis, told the jury.

Two nationally known ear, nose and throat specialists testified that such procedures can infrequently lead to such injuries even when performed in the most competent manner possible.

"In my opinion, he acted as a reasonably competent otolaryngologist [ear, nose and throat specialist] in the course of that surgery," said Dr. Bruce W. Jafek, a professor and chairman of the department of otolaryngology at the University of Colorado School of Medicine.

Mr. Kennelly testified he earned more than $30,000 a year as a supervisor of the ARCO mini-markets before he left the company in 1985 to purchase a service station in Silver Spring for $180,000. He sold it two years later for $300,0000, he said.

He went to work after the surgery briefly as a supervisor at Besche Oil Co. in Southern Maryland but had to be dismissed when he couldn't remember important details for the job, such as how to find dealerships where he had to check operations.

Mr. Kennelly testified that he still has trouble making change, has to carry his home phone number with him so he can provide it when asked and can't remember whether he did simple tasks, like washing the breakfast dishes.

"I'm like the absent-minded professors," he told jurors.

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