Kennelly v. Burgess

HARRELL, Judge. Kevin E. Kennelly and his wife, Lynette Kennelly, appellants, sued Scott E. Burgess, M.D., and his medical enterprise, Scott E. Burgess, P.A., appellees, for medical malpractice arising from a surgical procedure performed by Dr. Burgess on Mr. Kennelly. On 21 October 1991, appellants’ claim was heard before a Health Claims Arbitration Panel. The panel found in favor of Dr. Burgess.

Appellants rejected the panel’s decision and subsequently filed suit in the circuit court. A ¹⁷³ jury in the Circuit Court for Anne Arundel County (Lerner, J. presiding) returned a verdict in favor of Dr. Burgess. Thereafter, the Kennellys noted a timely appeal to this court. ISSUES On appeal, three issues are raised 1 : I. In a medical malpractice case, it is reversible error to instruct the jury that an unsuccessful result following medical treatment is not evidence of negligence where expert medical testimony relies on such a result to support its opinions regarding negligence.

II

It is reversible error for the trial court to fail to instruct the jury that an expert witness, because he is an expert witness, can aver negligence from the results of the medical procedure.

III

It is error to permit an economist to use net income, adjusted for the effect of taxes, rather than gross income in computing lost wages, either accrued or prospective. Based on our review of the experts’ testimony at trial and the applicable law, we hold that the trial court’s charge to the jury did not constitute reversible error. Because we find no error in the trial court’s instructions, the verdict will stand. Therefore, we need not address appellants’ third assertion on appeal.

FACTS On 11 May 1988, Dr. Burgess, an otolaryngologist (specialist in the treatment of the ear, nose, and throat), admitted Kevin Kennedy into North Arundel Hospital to perform that day a surgical procedure to relieve Kennedy’s medical condition, which Burgess had diagnosed as chronic sinusitis. The intended surgery was described as a bilateral intranasal ethmoidectomy. In this procedure, the surgeon removes the mucuous membranes of the ethmoid sinuses, via the left and right ¹⁷⁴ passages of the nose. The ethmoid sinuses run up to the roof of the nose, called the fovea ethmoidalis.

The fovea ethmoidalis, a delicate bone tissue, is attached to the dura, the protective coating of the brain. This bone tissue, which experts who testified in the case sub judice characterized as “eggshell” or “paper” thin in its normal, healthy state, is essentially the only barrier between the ethmoid sinus cavity and the brain. There are two methods by which otolaryngologists may perform a bilateral intranasal ethmoidectomy, the conventional or classical technique and the endoscopic method. When the conventional or classical method is employed, the surgeon mechanically spreads the nasal opening and, utilizing only a head-mounted light to illuminate as much of the nasal cavity as can be visualized or his sense of touch where he cannot see what he is doing, removes the diseased tissue with an instrument called a Blakeslee forceps.

When the newer, endoscopic method is employed, the surgeon inserts an instrument called an endoscope up into the nasal cavity. The endoscope is an optical instrument that allows the surgeon to illuminate and visualize on a video monitor in the operating room areas of the nasal cavity not as readily observable via the conventional method. The surgeon then removes the diseased tissue under direct observation. Dr. Burgess performed Mr. Kennelly’s surgery using the conventional or classical technique.

On the morning of the surgery, Dr. Burgess informed Mrs. Kennelly that he expected the surgery to last approximately one hour to one hour and one-half. He reassured her that he had performed this surgery on several occasions. Approximately two and one-half hours after Mr. Kennelly was taken into surgery, Mrs. Kennelly spoke to Dr. Burgess. He informed her that “all went well except that there was a lot of excess bleeding.” On the following day, 12 May 1988, however, it became apparent that all had not gone well with Kennelly’s surgery.

The hospital contacted Mrs. Kennelly at home to inform her that her husband was not recovering properly. When she ¹⁷⁵ arrived at the hospital, Mrs. Kennelly observed that her husband “was highly agitated, he had no orientation whatsoever as to where he was, he didn’t know our daughter’s name, he didn’t know where we lived. The only person or thing that he knew was me.” On that day, several tests were performed to detect the cause of Mr. Kennelly’s condition. A CAT scan revealed an abnormality in Mr. Kennelly’s brain and bleeding that extended into the intracranial cavity.

The pathologist’s report stated that portions of bone and brain were found in the specimens routinely taken during and examined following surgery. Dr. Burgess called in Dr. David Tolner, a neurosurgeon, to review Mr. Kennelly’s situation. After reviewing the CAT scan and examining the patient, Dr. Tolner opined that Kennelly had suffered a stroke during the operation. He was also concerned about surgical “penetration into the cranial cavity,” causing spinal fluid leakage into the sinuses of the nose.

On the same day, he made arrangements to have Kennelly transported to Johns Hopkins Hospital to be seen by another neurosurgeon specialist, Dr. Haring Nauta. An angiogram ordered by Dr. Nauta detected an irregularity in an artery located in the brain. A second angiogram confirmed the existence of an aneurysm. Dr. Nauta then performed a bifrontal craniotomy, during which he clipped the aneurysm and repaired the damaged artery.

In addition, Dr. Nauta lifted and realigned portions of the brain that had herniated through the fovea ethmoidalis into the ethmoid sinus. He also repaired a cerebral spinal fluid (CSF) leak. Following the operation, Dr. Nauta informed both Dr. Burgess and appellants that he had found “a definite penetration of the brain.” He further opined that Mr. Kennelly sustained organic brain damage and that the condition was permanent. Dr. Nauta believed that the damage would prevent Mr. Kennelly from returning to work as a business executive.

In accordance with the Health Claims Arbitration Act, Md.Cts. & Jud.Proc.Code Ann. § 3-2A-04 (1989), appellants filed a claim against appellees with the Health Claims Arbitra ¹⁷⁶ tion Panel, alleging that Dr. Burgess negligently violated the acceptable standard of surgical care in his performance of the ethmoidectomy. On 13 November 1991, the Panel issued its ruling in favor of Dr. Burgess. On 10 December 1991, appellants filed an action to nullify the Panel’s ruling against them in the Circuit Court for Anne Arundel County. A classic “battle of medical experts” ensued at the trial, which began on 30 September 1992.

The segments of the medical experts’ testimony relevant to this appeal are recounted below. Dr. Nauta testified that, when he performed the bifrontal craniotomy, he also made an examination of the floor of the skull cavity and saw two neatly nibbled defects in the bone. According to Dr. Nauta, there were identical holes on both the right and left sides that measured approximately one centimeter. When questioned by appellants’ counsel about his observations of the ethmoid roof (fovea ethmoidalis) during the operation, Dr. Nauta testified to the following: Q: Doctor, observing the holes that you saw on the ethmoid roof, do you have an opinion, with a reasonable medical probability, as to whether or not those particular holes could have ... were probably caused by an operating instrument?

A: Well, I ... I think they clearly were, because they were tiny little scallopings with the bone being thick enough that I didn’t ... didn’t think it had just eroded itself in that manner. Q: Your word ... you used the word “nibbled,” in other words ... A: Well, the diameter of the scallop in the curvature is the same in each case as if the same instrument had nibbled it in each little ... little bite.

So, there was a little edge all along, a serrated edge, if you will. Dr. Ferdinand Rodriguez, an associate pathologist at North Arundel Hospital, testified that when he examined tissue ¹⁷⁷ specimens taken by Dr. Burgess from Mr. Kennelly’s ethmoid sinus area, he found “ethmoid mucosal tissue, ... bone, ... and pieces of brain.” He testified that the ethmoid mucosal tissue he examined displayed “mild, chronic inflammation.” Dr. Rodriguez specified that the brain tissue found contained both grey matter from the superficial part of the brain, and white matter from the deeper portion of the brain containing the brain fibers. Dr. Rodriguez further testified that he found both hard and soft bone fragments. Appellants’ counsel then questioned him regarding the existence of any bone inflammation: Q: Now, relative to the bone, itself, that you examined, did you find any evidence of any inflammatory process concerning the bone?

A: The bone was not involved in any inflammatory process. Q: In other words, I understand the bone, itself, was free of any type of disease. A: Yes, that’s right. Dr. Rodriguez further stated that there was no way for him to ascertain whether the bone fragments he examined were, in fact, portions of the fovea ethmoidalis.

Indeed, he acknowledged that the bone may have been septation fragments. 2 Dr. James Stankiewicz, a physician engaged by appellants to opine as to Kennelly’s treatment, was qualified by the court as an expert in otolaryngology. Dr. Stankiewicz stated that, prior to his testimony at trial, he reviewed “records from the North Arundel Hospital, a few of the records from Johns Hopkins Hospital, the neurosurgical information and the hospitalization,” as well as the deposition testimony of Dr. Burgess and his standard of care experts. ¹⁷⁸ Relying specifically on some of the records he reviewed, Dr. Stankiewicz explained to the jury the factors he believed to be indicative of Dr. Burgess’s negligence. He testified that his review of a CAT scan of Mr. Kennedy’s brain, taken prior to the ethmoidectomy, did not depict the existence of extensive disease. He stated that he saw “a little bit of disease” in some regions of the ethmoid sinus, but otherwise failed to detect “a lot of disease” in the picture.

Furthermore, upon examination of Dr. Burgess’s operative report, Dr. Stankiewicz stated that, unlike the procedure used by Dr. Burgess, it was his practice to “remove the middle turbinate at the beginning of the procedure [ethmoidectomy] to get better visualization.” The middle turbinate is one of three pieces of bone attached to the inner surface of the wall of the nose. The middle turbinate separates the inferior and superior passageways within the nasal cavity from the middle passageway. According to Dr. Stankiewicz, a failure to remove the middle turbinate increases the difficulty of the procedure, because it “decreases visualization,” causing a “mechanical obstruction that you have to look around in order to ... to get at an area.” Later during his testimony, Dr. Stankiewicz referred to several CAT scans taken following the surgery on 12 May 1988. In particular, he highlighted one CAT scan that depicted two distinct defects in Mr. Kennedy’s fovea ethmoidalis and cribiform plate.

He also stated the scan showed an area “filled with postoperative change, it could be blood clot, which is probably what it is down in this area, and it’s hard to tell here what’s going through those defects.” Dr. Stankiewicz attributed the defects depicted in the CAT scan to “intraoperative injury.”. Finally, before rendering his opinion on direct examination by appellants’ counsel, Dr. Stankiewicz focused on the bleeding associated with the ethmoidectomy in question. He concluded that the loss of 1,200 cc’s of blood was “way beyond what you would expect, in a case with disease such as he [Mr. Kennelly] had, which was moderate disease.” ¹⁷⁹ As framed in a question posed by appellants’ counsel, Dr. Stankiewicz, “based on the investigations” that he made, concluded that Dr. Burgess’s conduct during Mr. Kennelly’s ethmoidectomy fell below the standard of care required of a reasonably competent otolaryngologist performing the procedure in question. Dr. Stankiewicz precisely defined how Dr. Burgess failed to meet the standard by stating the following: My opinion is that at the time of the surgery on Kevin Kennelly that Doctor Burgess went through the fovea ethmoidalis, cribriform plate area and entered into the brain, and this is not within the standard of care for that surgery.

Thus, Dr. Stankiewicz deduced that in performing the ethmoidectomy on Mr. Kennelly, Dr. Burgess penetrated through the fovea ethmoidalis, the roof of the ethmoid sinus, and inserted forceps directly into the brain, where it was resting in its normal position. On cross-examination, Dr. Stankiewicz acknowledged differences between the method by which he currently performed an ethmoidectomy and the method by which Dr. Burgess performed Mr. Kennelly’s ethmoidectomy in 1988. Dr. Stankiewicz admitted that, in 1988, “there were different schools of thought” concerning whether it was necessary to remove the middle turbinate. In this regard, appellees’ counsel also pointed out Dr. Stankiewicz’s prior testimony before the Panel concerning operating in the roof of the ethmoid without removing the middle turbinate: Q: Question: “So, if you didn’t remove it initially, and then were working in the roof of the ethmoid, it is difficult to see and most of the procedure in that area is done by feel.

Is that right?” A: That’s right. Q: Answer: “That’s right.” Question: “And that gets you into the area of judgment as to where you were and exactly what you were removing. Is that right?” A: That’s right. ¹⁸⁰ Appellees’ counsel then shifted the focus of cross-examination to how Dr. Stankiewicz arrived at his conclusion that Dr. Burgess’s performance during the operation in question fell below the standard of care: Q: And you now know that this is a drawing done by Dr. Nauta of his findings right after he did the surgery. A: All right.

Q: Is that right? A: Yes. Q: And that these boxes represent the area where he found the defect? A: Yes.

Q: Is that your understanding of where they were? A: If you look at the x-ray back there which I showed you earlier, that pretty much correlates. Q: Now, in ... if I understand you correctly, when you’re talking about your view of the standard of care, you can remove, and I don’t mean this in a derogatory sense, but in doing this procedure, there can come a time when this roof part can come ... be removed by the operator. A: That can happen in the process of doing the procedure.

Q: All right. And when that happens in and of itself, that is not a deviation from the standard of care as you understand it to be. * # * * * A: I said it is not provided you recognize it and stop. Q: Is it your view ... well, let me ask you; has that occurred to you from time-to-time? A: Sure.

Q: Have you always recognized the leaks? A: Yes. ¹⁸¹ Q: So, it’s your view, ..., that in every case where you had intruded into the bone and hit ... pulled out the bone, you recognized it, knew about it, and dealt with it. A: In the situation where I was in there and I was removing disease and I pulled bone out, and I could see it, yes I recognized it.... [w]hen I’m in operating, if I can see it, then I stop. Q: Well, I understand that.

If you can see it, you would stop. But it ... that’s doing it endoscopically. Is that right? A: Yes.

Q: But you might not see it if you were doing a regular, I don’t want to use classical, but an intranasal ethmoidectomy without the endoscope. A: There’s probably a good bet that you wouldn’t see it. Q: And if, in fact, you removed the bone in that area as I understand it, the dura [protective lining of the brain] sticks to the bone. A: The dura in that area can be fairly adherent to the bone.

Q: Meaning sticks to as I— A: Meaning sticks to. Q: So, that when you take the bone, the dura may very well come with it. A: There’s a good chance you may get some dura. Sometimes not but it may occur.

Q: And, if that occurs, again using the type of operation that Doctor Burgess was doing, you may not know it and you would get a leak or it might leak at that time or it might leak later. Is that right? A: Yes. Q: And would it be fair to say if that occurred, in your view, using the procedure that he was using, it would not ¹⁸² be a deviation from the standard of care if, in fact, once he found out there was a leak, he went in and treated it? * * % * * # Q: All right.

So, in your view then, it would be a grey area. Is that right? A: That’s right. It’s a ... it depends on what the outcome is with the patient.

Q: All right. So, if you could fix it without too much problem for the patient, it wouldn’t be a deviation from the standard of care but if you have to do a big operative procedure, then it would be a deviation from your point of view? A: I think from that standpoint, that’s fair. During a brief re-direct examination, Dr. Stankiewicz referred to Dr. Tolner’s report concerning the breakdown of Mr. Kennedy’s white and red blood cell count.

He stated that the dramatic increase in white cells following the ethmoidectomy indicate “inflammation ... and ... and some injury somewhere and some potential of infection.” Appellees’ counsel, on re-cross examination, questioned Dr. Stankiewicz concerning the position of the brain when a portion of the fovea ethmoidalis is removed: Q: Doctor, if we were to assume that the - defects were where they are shown on Doctor Nauta’s note and as I understand it the brain is sitting fight on top of there, is that right? A: On top of the— Q: Roof of the ethmoid. A: —roof of the ethmoid, yes. # * # * * # Q: And if a portion of the roof is removed, then you would agree that the brain can come down into the ethmoid sinus cavity itself. Is that right? ¹⁸³ A: Depends on how much.

If you’ve got a small opening, it isn’t going to come down. But if you’ve got a large opening, then yes, that can happen. Q: The fact of the matter is that in this case, one possible scenario is that that’s, in fact, what happened; the brain, using your word, pooched down in there and the operator actually can be inside the ethmoid sinus cavity itself remove ... and actually strike it. Is that right?

A: Well, despite the fact that you want to ... you would want to know that and keep an eye on how far you are because you can judge a lot of those distances, that can occur. Q: That has occurred. Isn’t that true? A: I don’t know specifically that that has occurred but it certainly can occur.

Q: All right. And you don’t know one way or the other whether that, in fact, occurred in this case. A: To be honest with you, I don’t know exactly the size of the defect and whether it made the brain more accessible or not. Dr. Burgess presented the testimony of two otolaryngologists to refute the statements made by Dr. Stankiewicz attributing negligence to Dr. Burgess.

Each testified that, in his opinion, Dr. Burgess’ performance during Mr. Kennelly’s operation conformed to the appropriate standard of care required for a bilateral intranasal ethmoidectomy performed without the use of an endoscope. First, Dr. Douglas E. Mattox, also recognized by Dr. Stankiewicz as a leader in the field of otolaryngology, was so qualified as a medical expert by the court. Based on his review of Mr. Kennelly’s history of chronic sinus problems, Dr. Mattox believed that Dr. Burgess employed the “reasonable and necessary operative procedure” on Mr. Kennelly. Dr. Mattox also explained to the jury the effect that chronic sinus disease can have on the bones in the area of the sinuses of the skull: ¹⁸⁴ A: Well, it’s ... different in every case, but certainly, chronic infection can lead to some softening of the bone or some thinning of the bone, or if it’s reactive, even some thickening of the bone.

Q: Were you able to determine one way or another, based on your review of these X-rays, as to what effect, if any, the chronic sinus disease that you observed in Mr. Kennelly had with respect to the bones and the sinuses? A: Not in great detail. The CT Scans, of course, ... take a volume of tissue and condense it into a single picture, and so I did not see, for instance, a big hole in the bone between the sinus and the intracranial cavity. The bone is so thin anyway that I cannot determine from the ... from the scans if it’s thinned more than normal because much of this bone is paper thin to start with.

Q: With respect to the bone in the area that we’re concerned with in this case, can you tell the members of the jury, based on your experience, the average thickness that one would find in that area? A: One millimeter or less. Q: And a millimeter is, if you were going to make an analogy to something ... A: Thickness of your thumbnail.

As Dr. Stankiewicz had acknowledged during his cross-examination, Dr. Mattox stated that when operating in the ethmoid sinus area using a head-mounted light and the Blakeslee forceps, that “to a certain extent, you have to rely on your judgment of the angles that you’re working and by feel.” During the ensuing dialogue with appellees’ attorney, Dr. Mattox expressed his opinion regarding whether Dr. Burgess had met the requisite standard of care when performing the ethmoidectomy on Mr. Kennelly: Q: Doctor, ... based on your review of these materials that you told the jury about, all of the operative materials, everything, can you express an opinion as to whether or ¹⁸⁵ ... to a reasonable degree of medical probability as to whether or not during the performance of the surgery on May 11, 1988, the intranasal ethmoidectomy, Dr. Scott Burgess acted as a reasonably competent otolaryngologist with respect to the procedure that he did? A: I do. Q: And what’s your opinion? A: I believe that he did so act.

Q: The case that we’re here on is because apparently, during the course of this procedure, something happened. Can you tell the jury why you think, even though that occurred, Dr. Burgess acted as a reasonably competent doctor when he did the surgery? A: Well, I believe that ... that the procedure was indicated and that he had the patient’s overall best interest at heart, and I believe that he identified certain landmarks that you can identify in the nose, the nasal septum which the ... center portion of the nose, the middle turbinate, the ethmoid bulla, that he used appropriate equipment, that he used appropriate illumination, and that he performed the procedure as ... as a reasonable person would. [REFERRING TO THE COMPLICATIONS IN KENNELLY’S SURGERY] Q: Doctor, do you have an opinion that you can express to a reasonable degree of medical probability as to how the incident occurred? A: I believe that the bone in this area was very thin and although Dr. Burgess was following the landmarks that he had, he removed some of that bone, and then once the bone is gone, there’s ... there’s no protection to anything inside.

Q: Now Doctor, do you have to actually penetrate the ... area inside the brain or ... well, do you? ¹⁸⁶ A: Well, it’s ... there are two potential mechanisms. Either you physically go inside the cranial cavity with the forceps, ... or as the bone has been removed, the brain is allowed to ... to fall down into the sinus cavity where ... where some fragments were removed. In Dr. Mattox’s opinion, therefore, Dr. Burgess’s conduct during the ethmoidectomy did not fall below the standard of care, because, under the circumstances, it was not unreasonable for him unknowingly to remove portions of the fovea ethmoidalis. In contrast to the opinion provided by Dr. Stankiewicz, Dr. Mattox stated that it was not unusual for a patient suffering from chronic sinus inflammation to lose a thousand cc’s of blood when undergoing a bilateral intranasal ethmoidectomy on each side of the nose.

In this regard, Dr. Mattox also expressed his opinion to a reasonable degree of medical probability that the bleeding described by Dr. Burgess during Mr. Kennelly’s operation did not, as appellants contended, derive from an injury to the right cerebral artery in the brain. According to Dr. Mattox, such an injury could not have been controlled by medical sponge packing, and would have caused a “lethal event right on the operating table.” Dr. Bruce Jafek, also recognized by Dr. Stankiewicz as a leader in the field of otolaryngology, was also qualified by the court as a medical expert and testified on behalf of appellees. Like Dr. Mattox, Dr. Jafek stated that, in his opinion, Dr. Burgess’s conduct during the operation in question had not deviated from the requisite standard of care. In this regard, Dr. Jafek stated: A: Yes, in my opinion, he acted as a reasonably competent otolaryngologist during the performance of that surgery.

Q: And why do you hold that opinion, Doctor? A: He had properly evaluated Mr. Burgess [sic] in terms of history. He had properly tried additional course of antibiotics. He had properly obtained the appropriate X-rays to evaluate the extent of pathology.

He found that, ¹⁸⁷ he obtained surgical consent, and he went ahead and conducted the operation. Q: Dr. Jafek, where we left off, according to my note, was we were talking about whether or not this was the type of complication that could occur even in the hands of the most skilled surgeon. A: Yes, sir. Q: And did you have an opinion in that regard?

A: Yes, sir. This can occur in the hands of the most skilled surgeon. Appellees’ counsel then questioned Dr. Jafek concerning his interpretation of the standard of care in medical malpractice cases in relation to the interpretation provided by appellants’ standard of care expert, Dr. Stankiewicz: Q: Now my question is, do you have an opinion that you can tell this jury as to whether or not the standard of care for a reasonable competent physician is determined by what the doctor does as opposed to what the outcome is for the patient? A: Well, I think that that’s an unusual description of a standard of care.

If we were to dictate a standard of care by outcome, anytime that you had a ... a bad outcome, that would mean that you didn’t adhere to the standard of care.... The standard of care, as I understand it, is what a reasonably prudent doctor would have done under similar circumstances, and that’s my understanding of what Dr. Burgess did in this case. Like Dr. Mattox, Dr. Jafek emphasized that, in his opinion, the bleeding which occurred during Mr. Kennelly’s operation was neither excessive nor arose from an injury to the right cerebral artery. Dr. Jafek also demonstrated to the jury, using the human skull, the normal thinness of the fovea ethmoidalis. ¹⁸⁸ Next, Dr. Jafek stated his opinion, based on Dr. Nauta’s operative notes, concerning what happened to Mr. Kennedy’s brain during the ethmoidectomy: Q: Are you able to express an opinion to a reasonable degree of medical probability as to whether or not an instrument such as a Blakeslee forceps entered into the cavity where the brain is, or if the roof of the ethmoid was removed and the brain dropped down?

A: Yeah, it would be my opinion to be more likely that the ... with the removal of the roof of the ethmoid that the brain was down. It is not my opinion that the instrument was inserted up into the brain cavity. [EXPLAINING DR. NAUTA’S OPERATIVE NOTES] Q: With the brain herniating down into it? A: Yes.

Q: Now what does that mean? A: Wed, herniating, or course, is extending down, dropping down in, possibly extending, herniating, moving. It’s in an unusual location for the brain. Q: And then he describes that he went to the other side and he found a symmetrical opening herniating down on the opposite side.

A: It sounds like the brain was down on both sides into the ethmoid cavity. Finally, Dr. Jafek, although not a pathologist, examined the slides taken by Dr. Rodriguez of the specimens taken from Mr. Kennedy by Dr. Burgess during the surgery, over the objection of appellants’ counsel, and concluded that the “little bony fragments” detected in the specimens contained “some acute and chronic inflammatory cells which you can’t see at this magnification.” According to Dr. Jafek, the bone fragments were specimens “which you would normally expect ... in this kind of operation.” ¹⁸⁹ Dr. Jafek could not establish to a reasonable degree of medical probability, however, based on his examinations of the CAT scans and Dr. Nauta’s notes, whether Mr. Kennelly’s fovea ethmoidalis was thin or eroded. He could only conclude that some defect in the fovea ethmoidalis, caused either naturally or by a subsequent removal by Dr. Burgess, allowed Mr. Kennelly’s b,rain to herniate into the cavity of the ethmoid sinus area. This herniation, in turn, resulted in Dr. Burgess’s penetration of those portions of Mr. Kennelly’s brain that had settled into the sinus.

According to Dr. Jafek, none of the actions taken by Dr. Burgess that may have caused, or in fact did cause, the resulting penetration of the brain fell below the requisite standard of care for an otolaryngologist performing a bilateral intranasal ethmoidectomy via the technique utilized in the case mb judice. Dr. Burgess testified on his own behalf concerning what happened during Mr. Kennelly’s operation. Dr. Burgess stated that, after the patient was anesthetized, he entered the nasal cavity and moved, rather than removed, the middle turbinate. Dr. Burgess explained that he did not remove the middle turbinate because he had not been taught to perform the procedure in that manner.

On the contrary, he stated that, in his experience, “the majority of people [surgeons] do not remove the middle turbinate,” because they use it as a surgical landmark. Dr. Burgess then testified that he proceeded to remove the inflamed mucosa and septated bony partitions with the Blakeslee forceps. He further stated that based on Mr. Kennelly’s preoperative CAT scans and physical examination, he knew that the disease existed up to the roof of the ethmoid sinus. Like the other three otolaryngologists who testified, Dr. Burgess explained that when using a head-mounted light and the Blakeslee forceps, rather than an endoscope, the procedure is partially dependent on the doctor’s sense of touch.

According to Dr. Burgess, he did not feel or observe anything out of the ordinary when performing Mr. Kennelly’s intranasal ethmoidectomy. ¹⁹⁰ Dr. Burgess also explained that during a normal bilateral ethmoidectomy, a patient would lose approximately 400 to 500 cc’s of blood on each side. Therefore, the customary blood loss, according to Dr. Burgess, would be between 800-1,000 cc’s. He testified that he considered, in retrospect, that the 1,000 to 1,200 cc’s of blood lost by Mr. Kennelly was “unusual”, but only to the extent that “it was a little more” bleeding than he anticipated. Dr. Burgess also disputed a reference in Dr. Tolner’s report that when he referred Mr. Kennelly to Dr. Tolner for observation, he told Dr. Tolner that he “aggressively packed” the nasal cavity to halt “copious” bleeding.

Dr. Burgess' also stated his opinion concerning what happened during Mr. Kennelly’s surgery: My opinion is that probably because of all the chronic inflammation in the area, that the chronic inflammation causes a thinning of the bone and ... and this bone which is ordinarily, you know, egg-shell thin, was thinned even further and ... and when you grab the mucosa with the Blakeslee forceps, it’s possible to ... as you grasp the mucosa and pull the mucosa out, it’s possible that this very ... very, very thin bone will come with it. Another possibility is that this bone is so soft and ... and spongy in consistency that when you relied on your sense of feel to ... to feel the rigidity of the bone to let you know that there’s the ethmoid roof there, you ... you don’t encounter any resistance so it doesn’t give you notification of that. So you can remove a portion of it and it doesn’t have any different feel than ... than the mucosa of the sinus disease. And indeed, when you remove the Blakeslee forceps, you see the diseased sinus .mucosa, so you know you’re in ... you’re doing the procedure as you indicated.

On cross-examination, among other disputes, appellants’ counsel challenged Dr. Burgess’s contentions that Mr. Kennelly’s ethmoid bone, or fovea ethmoidalis, was “very thin” or spongy due to inflammation. Appellants’ counsel questioned him concerning the pathology report prepared by Dr. Rodriguez that had been admitted into evidence, as well as the testimony of Dr. Rodriguez. Specifically, appellants’ counsel ¹⁹¹ questioned appellee concerning Dr. Rodriguez’s testimony that the bone specimens he examined were “free of any type of inflammatory process.” 3 Burgess, however, stated that he did not recall making such a statement. Appellants’ counsel abandoned that line of questioning.

Following the testimony of Dr. Burgess, the trial court provided instructions to the jury, including, but not limited to the following ones, which are germane to this appeal: A witness who has special training or experience in a given field is permitted to express opinions based on observed or assumed facts to aid you in deciding the issues in the case. In weighing the opinions of an expert, you should consider the expert’s experience, training and skills, and the expert’s knowledge of the subject matter about which he’s expressing an opinion.... General rules of negligence apply to malpractice cases as well as to ordinary claims of negligence ... You are instructed that the standard of care which a physician is required to adhere to in the practice of his profession is only that ... that of a reasonably competent physician under the same or similar circumstances, that is to say the physician is not required by law to exercise any care and skill of a special character which exceeds that ordinarily and customarily