The opinion
STATE OF MAINE GER tard. SUPERIOR COURT
2 CIVIL ACTION
CUMBERLAND, ss CLERKS FRO!
~ DOCKET NO. CV-00-284
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ROBERT ZUTAUT and ey
MARY ZUTAUT,
oct 31 20
Plaintiffs
Vs. JUDGMENT
BRUCE V. GALLUP, D.M.D.,
Defendant
Jury-waived trial on the plaintiffs’ complaint was held on 10/17/00. All
parties appeared with counsel.
On 5/5/98, the plaintiff Robert Zutaut saw the defendant with regard to a
lump on the plaintiff’s left jaw. A CT scan revealed a likely calcified lymph node as
the mass. As the defendant palpated the lump while Mr. Zutaut opened and closed
his jaw, the lump moved, which suggested to the defendant that the mass was
either attached to or emanated from the temporomandibular joint. In fact, the mass
originated in the parotid gland and adhered to the temporomandibular joint.
On 6/1/98, the defendant performed surgery on Mr. Zutaut to remove the
lump in the left preauricular area. During the surgery, at least the zygomatic and
temporo branches of the facial nerve were dissected. A partially calcified cyst and
left parotid gland tissue were removed.
The defendant did not see the parotid gland or the facial nerves during the
surgery. He thought the parotid gland was a safe plane away from where he thought
the lump was located.
Most masses in the preauricular area are parotid tumors. Based on the CT
scan, the defendant should have been aware of potential parotid gland
involvement. The standard of care required identification of the facial nerves prior
to any removal of tissue. That standard was breached by the defendant because he
incised directly into the soft tissue and circled the mass without consideration of the
location of the nerves.
The defendant, an oral surgeon, agreed that he was not trained or
experienced in parotid gland surgery. If he had known that the surgery on Mr.
Zutaut would involve that gland, the defendant would have referred the patient to
another, qualified doctor.
The defendant argues that although this surgery was beyond his training and
expertise as an oral surgeon, the focus must be on the standard of care of an oral
surgeon. The standard of care to be observed by the person performing this surgery
did not vary depending on the physician's specialty. Any physician in any specialty
had a duty to identify the facial nerves and ensure that they were not cut. See
Levesque v. Chan, 569 A.2d 600, 601-02 (Me. 1990); Hauser v. Bhatnager, 537 A.2d
599, 600-01 (Me. 1988).
After the surgery, Mr. Zutaut was referred to Dr. Berlin, a board certified
ophthalmologist, by Dr. Guiseley, an optometrist. On August 28, 1998, Dr. Berlin
did a lid tightening procedure in order to put the lid back into position against the
cornea and to reduce the space between the upper and lower lid in order to reduce
drying of the cornea.
On September 4, 1998, Dr. Berlin referred Mr. Zutaut to Dr. Antoniou, an
otolaryngology consultant, because of Dr. Berlin's concerns about Mr. Zutaut's facial
nerve function. Dr. Antoniou determined, based in part on an ENG study done by
Dr. Collins, that there was a complete transection of the upper facial nerves.
On 10/2/98, Dr. Bonawitz, a board certified plastic surgeon, performed surgery
on Mr. Zutaut in order to repair the nerves, either through anastomosing or
grafting. Dr. Bonawitz was unable to sew nerves together because the nerve
branches ended in a mass of scar tissue and could not be reattached. Nerves from
Mr. Zutaut's forearm were used in an attempt to graft the facial nerves. This
procedure resulted in a permanent loss of sensation in his arm. The situation
confronting Dr. Bonawitz was the result of the facial nerves having been cut as
opposed to having been stretched.
Although the studies after Dr. Bonawitz's surgery suggest that the nerve graft
had been done in a correct anatomical location, it did not appear that the surgery
resulted in much functional improvement. Dr. Bonawitz discussed with Mr.
Zutaut the possibility of additional surgery, although Dr. Bonawitz did not believe
that that surgery would remedy the problems. The plaintiffs determined not to go
forward with that surgery.
In January, 2000, Dr. Kahn, Dr. Berlin's partner, performed another surgery
on Mr. Zutaut during which the doctor inserted a gold weight into the left upper
eyelid. The purpose of the surgery was to add weight to the eyelid down to give
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better protection, particularly at night.
Mr. Zutaut's medical bills proximately caused by the defendant's surgery total
$54,072.74 to date. Mr. Zutaut spends approximately $253.02 per month on
ointments, eye drops, eye patches and covers, and medicine. These expenses are
ongoing and the use of the items listed on plaintiff's exhibit 9A is reasonable. Mr.
Zutaut’s life expectancy is 22.6 years.
Mr. Zutaut experienced significant pain, swelling, bleeding, and bruising
immediately after the defendant's surgery. Since that time, he continues to suffer
with a left eye which will not close and which, in his words, is a "burning and
painful situation." He is unable to elevate his left brow and there is numbness on
the left side of his face. He was also drooling but that has improved. His eye feels as
though sand or gravel has been thrown into it. The burning sensation was severe
enough to require the plaintiff's family doctor, Dr. Van Mourik, to tape Mr. Zutaut’s
eye closed for one month in February, 1999. Periodically, the plaintiff's eye swells
and requires hot, wet compresses.
His inability to close his eye affects all daily activities. The plaintiff can not
see well and, therefore, has difficulty reading and driving. Water from a shower or
from swimming burns his eye, as does wind, the sun, pollen, dust, and air
conditioning. Anything that may result in a substances hitting his eye is to be
avoided, including using a snowblower and cooking. He can no longer hunt or do
mechanical work.
Perhaps the biggest problem the plaintiff faces is his inability to sleep. He
takes sleeping pills on a daily basis, as well as Percodan for severe headaches. His
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eye continues to tear, swell, and become red and is full of mucus each morning
when he awakes. Although the lubricants and drops that the plaintiff takes to keep
his eye moist provide some relief, they also affect his ability to see clearly.
Plaintiff Mary Zutaut tries to do what she can for her husband whom she
describes as having had a hard time through all of this. His irritability, resulting
from his inability to sleep, is sometimes directed at her. She doesn’t do much about
that because she knows he is suffering. She is tolerant.
The injuries suffered by Mr. Zutaut as a result of the defendant’s surgery are
permanent and his condition will not improve. The goal, in fact, is to try to manage
the problems in order to avoid significant deterioration of the condition of his eye.
The entry is
Judgment is entered in favor of the Plaintiff Robert Zutaut
and against the Defendant on the Plaintiffs’ Complaint in
the amount of $600,000.00 plus interest and costs.
Judgment is entered in favor of the Plaintiff Mary Zutaut
and against the Defendant on the Plaintiffs’ Complaint in
the amount of $50,000.00 plus jnterest and costs.
Date: October 25, 2000
Nancy Mills 17
Justice, Superior Co
Date Filed 05-03-00
CUMBERLAND
Action PERSONAL INJURY
ROBERT ZUTAUT and
MARY M. ZUTAUT
BRUCE V. GALLUP, DMD
VS.
Docket No. __CV_ 00-284
a, we TF mes
Oct 31 209
Plaintiff's Attorney
RANDALL E. SMITH ESQ 282-1527
PO BOX 1179, SACO ME 04072
Date of
Entrv
Defendant’s Attorney
DAVID C. NORMAN, ESQ.
P.O. BOX 4600
PORTLAND, MAINE 04112-4600
774-7000