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STATEMENT OF THE CASE
Appellee and Cross-Appellant Billy Karl Boone disagrees with Appellants‟
characterization of the question posed to Dr. Goldberg‟s expert witness. Mr. Boone
quotes the transcript in his Statement of Facts infra at page12.
QUESTIONS PRESENTED IN MR. BOONE’S CROSS-PETITION
1. Where a retained expert is asked a single cross-examination question about his
prior inconsistent testimony in a highly publicized case, does that question warrant
reversal of the denial of a mistrial motion, when the defendants never sought to
preclude such questioning in advance, never sought a curative instruction, and did
not move for mistrial until a day later, especially when the trial court rejected
defense counsel‟s claims of improper personal attacks and commended all counsel
for the “highest degree of professionalism” throughout the trial?
2. Where the jury found for plaintiff on both surgical negligence and informed
consent claims, should the court consider a sufficiency of evidence argument that
goes only to informed consent?
3. (If the court considers the merits of the informed consent issue): Did the Court of
Special Appeals correctly conclude that, as a matter of law, a surgeon with little
experience in a complex procedure performed close to the brain had no duty to
inform his patient of the risk of brain injury and the abundance of more
experienced specialists available?
STATEMENT OF FACTS
A. Events giving rise to the lawsuit
On January 6, 2000, Dr. Seth Goldberg, an ear-nose-throat (“ENT”) surgeon,
operated on the mastoid cavity behind Billy Boone‟s left ear to remove a benign growth.
That procedure, a mastoidectomy, was the second such procedure Mr. Boone had had and
was thus called a “revision” mastoidectomy. The first, done 17 years before by another
surgeon, had left a hole in Mr. Boone‟s skull above the mastoid. The hole exposed the
dura, the tough fibrous tissue that covers the brain. (E.129, 139, 193). Dr. Goldberg saw
the hole on a CT scan before the surgery. (E.443). Dr. Goldberg did not tell Mr. Boone
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that even normal revision mastoidectomies were more complex than first-time
mastoidectomies, that the hole made the operation riskier because the brain was
vulnerable, or that he had had little recent experience doing revision surgery. (E.446-
450).
After the surgery, Dr. Goldberg dictated an operative report. He noted nothing
unusual. (E.200). Mr. Boone went home that day. (E.200). The next morning, he could
not read or remember the names of family members. (E.350) (testimony of Mr. Boone).
Neurologists ordered imaging studies of his brain to try to diagnose his condition. (E.82,
85) (Dr. Satinsky). They saw a tract of what appeared to be air surrounded by blood in his
brain, leading from a pre-existing hole in the side of Mr. Boone‟s skull (the same one that
Dr. Goldberg had seen on the pre-operative scan). They concluded that something had
penetrated the dura and then the brain during Dr. Goldberg‟s surgery. (E.89). Mr. Boone
was given antibiotics to prevent an infection in the brain. Surgery was ruled out as an
option because the bleeding was confined to the brain tissue, and there was no pool of
free blood that could be drained to stop further damage. (E.94).
Mr. Boone was told 18 months later that his brain injury was permanent. His
cognitive and emotional brain changes left him unable to work. (E.273). In 2002, he sued
Dr. Goldberg and the Aesthetic Facial Surgery Center (“defendants”) for the negligent
performance of the surgery and for failure to obtain informed consent.
B. Evidence on Surgical Negligence
Dr. Goldberg admitted that penetrating the brain during this surgery would have
been negligent. (E.470). Therefore, the main issue at trial was whether he in fact had
penetrated Mr. Boone‟s brain with an instrument. Mr. Boone proved that this had
happened through the pre-operative and post-operative imaging scans of Mr. Boone‟s
brain and the interpretations of his treating physicians. His witnesses also addressed the
expert opinions disclosed by Dr. Goldberg. Dr. Goldberg and his experts offered several
theories, among them that the bleeding was not within the brain tissue itself but rather on
the surface of the brain, and therefore the tract of air that seemed to penetrate into the
brain was actually floating in a pool of free blood outside the brain. Another theory,
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introduced for the first time during trial, maintained that a piece of the benign growth had
escaped the bony roof of the mastoid, called the tegmen, traveled through the hole, and
contacted the dura with sufficient force to cause it to fall apart and allow gel foam to
penetrate the brain.
1. Mr. Boone’s case
Mr. Boone‟s first trial witness was a treating physician, Dr. David Satinsky, a
neurologist who saw Mr. Boone five days after the surgery. He at first suspected Mr.
Boone had had a stroke after the surgery. He ordered MRI and CT scans and reviewed
the CT scan with Dr. Citrin, a neuroradiologist. They both concluded that the CT scan
showed a tract of air penetrating through the skull into the brain. (E.88-89). Dr.
Satinsky prescribed antibiotics to prevent an infection from the brain having been
penetrated from the outside. (E.90). He concluded that the bleeding was inside the brain
tissue, not on the surface of the brain. (E.83-85). Dr. Satinsky telephoned Dr. Goldberg
to report the brain penetration and made notes about the call in Mr. Boone‟s chart. (E.90-
91). According to the note, Dr. Goldberg insisted that the air had to be in the area of the
surgery in the mastoid cavity, not in the brain itself. (E.91). At trial, Dr. Goldberg
testified that no such conversation had taken place. (E.456A). Dr. Satinsky was on a first-
name basis with Dr. Goldberg and did not appear at trial voluntarily. (E.90, 92-93).
Mr. Boone also called as an expert a leading ear surgeon from New York, Dr.
Samuel Selesnick, vice chairman of the otolaryngology department at Cornell New York
Presbyterian Hospital. Dr. Selesnick testified that Dr. Goldberg violated the standard of
care by penetrating the brain during the surgery in an area where he had no reason to put
an instrument. (E.102, E.105, E.116, E.137). Dr. Selesnick showed the jury that a tract
of what appeared to be air led from the pre-existing hole in the side of Mr. Boone‟s skull
directly into his brain. Because Dr. Goldberg denied penetrating Mr. Boone‟s brain, the
exact mechanism of injury could not be determined. However, Dr. Selesnick said that
several of the tools used in the procedure – including drills with tiny burr heads and
suction tubes – could have produced the injury seen on the post-surgery CT scan.
(E.141-142). Dr. Selesnick showed that the skull defect through which the brain was
