$825,000 - $825,000 Verdict Awarded to Woman for Damaged Voice.

$825,000 Verdict Awarded to Woman for Damaged Voice
The Legal Intelligencer
February 21, 2001.

by Ruth Bryna Cohen, Legal Staff

A Philadelphia Common Pleas Court jury yesterday awarded $825,000 to a woman who alleged her speaking voice has been permanently distorted by an orthopedic diagnostic procedure.

A high-low agreement between the parties fixed the amount the plaintiffs will receive at $600,000. Anne Lastichen and her husband, Joseph, sued Dr. Steven Meshkov after her vocal chords were damaged following a December 1996 cervical discogram at St. Francis Medical Center in Trenton, N.J.

The discogram was a last-step diagnostic option for Lastichen, who had suffered spinal problems that couldn't be sufficiently identified on a MRI, said Stewart J. Eisenberg, her attorney. He and Brian C. hall of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C. represented the plaintiffs.

Although Eisenberg described the discogram procedure as a "fairly unusual one," he said it isn't considered particularly high-risk. During the discogram, needles were REPLACEed into Lastichen's neck while dye was injected and images were captured on an X-ray to reveal irregularities in her spine.

Within an hour of the procedure, Lastichen developed a hematoma on her right vocal chord, one of the small bands of muscle in the larynx that vibrate to produce one's voice. She complained to Meshkov of hoarseness, but after examining her, the doctor said he believed the problem would go away in two days or so and recommended using ice, Eisenberg said.

More than four years and several other doctors later, the problem has not gone away. Lastichen's speaking voice is now characterized by what Eisenberg described as a chronic "gurgling" sound, similar to the sound a person has when he needs to clear his throat. In medical speak, the distortion is called dysphonia.

"Lastichen is chronically embarrassed and humiliated, whether she can't raise her voice in a crowd, or whether she is trying to sing to her 18-month-old baby daughter at night," Eisenberg said.

TRIAL

Judge Alfred J. DiBona presided over the four-day trial against Meshkov, the only remaining defendant in the case. The doctor was represented by David J. Griffith of Harvey Pennington Cabot Griffith & Renneisen.

St. Francis Medical Center was released from the case after winning preliminary objections. The hospital alleged a lack of jurisdiction due to insufficient contacts with Philadelphia. Another doctor originally named as a defendant who also dropped from the suit because she wasn't significantly involved in the case.

The plaintiffs focused on the post-operative care Lastichen received, which Eisenberg said presented a window of opportunity that Meshkov ignored. When Lastichen complained of hoarseness in the recovery room, he said, the doctor should have ordered a CT scan, called in a specialist or prescribed steroids for Lastichen.

"He examined her and said there was no swelling and that he expected the problem to go away in one to two days," he said.

The plaintiffs' experts were Dr. John Bogdarsarian, an otolaryngologist from Fitchburg, Mass., and Dr. James Abrahams, a neuroradiologist affiliated with the Yale University School of Medicine in New Haven, Conn.

The defendants presented a theory that Lastichen had pre-existing problems with her vocal chords that had been treated before, and that the cervical discogram did not cause her dysphonia.

Testifying as experts for Meshkov were Dr. Vito Loguidice, an orthopedic surgeon from Easton, and staff physician at Muhlenberg Hospital in Bethlehem, and Dr. Lee Rowe, an otolaryngologist with Northeastern Hospital.

The 12-person jury deliberated for seven hours over the course of two days, Eisenberg said.

'PAROL' EVIDENCE

Two recordings of Lastichen's voice on her husband's voicemail and a videotape of her wedding - the latter recorded just two months prior to the surgery - best demonstrated the damages in the case, Eisenberg said. He and Hall presented those to the jury.

"Two of her friends and her mother testified that she is embarrassed in public because of the way she speaks," he said. "This was significant because it is an award based on pain, suffering and humiliation."

No evidence of special damages was presented, Eisenberg said, because Lastichen did not suffer a loss of earnings and had "minimal" medical expenses. She was also disabled from a previous neck injury, he said.

DAMAGES

There was no offer of settlement in the case.

The jury awarded $750,000 to Lastichen for pain and suffering and $75,000 to her husband for loss of consortium, but the high-low agreement limited damages to $100,000 if there was a defense verdict and $600,000 if the plaintiffs won, with a guarantee of no appeal.

It is likely that the $600,000 amount will be given as a lump sum to the couple rather than broken down, said Hall.

Eisenberg estimated delay damages to be approximately $90,000.