A Jefferson County jury decided last week that a surgeon did not commit malpractice when he operated on a Birmingham trial lawyer, who claims the surgery ruined his voice and destroyed his practice.

Mark Elovitz sued thoracic surgeon David Alan Ladden in 1997, citing he went into surgery in March 1996 with the understanding that Dr. Ladden would only biopsy a suspicious mass in his lung. However, Ladden also had to biopsy a swollen lymph node in front of the aorta.

It was during that biopsy, Elovitz claimed, that a nerve that leads to his vocal chord was manipulated, which left him with a paralyzed vocal chord and a shallow voice. Elovitz's lawyers argued that the doctor should have tried to protect the nerve.

Defense lawyers with the Starnes and Atchison law firm disagreed, and said the chief of cardiac surgery from the University of Cincinnati testified Ladden did the operation correctly and did not breach the standard of care. They also said Ladden had fully explained to Elovitz that he would have to biopsy the mass and the node.

Defense lawyer Mike Florie said it was Ladden's obligation as a surgeon to biopsy the abnormal lymph node.

The mass was found not to be cancerous but to contain a fungal infection, as did the lymph node. Ladden testified he did not cut the nerve, but that the nerve may have been affected by the disease in the lung, a "gentle touching" of the nerve, a breathing tube inserted down the throat or a combination of the three.

Florie said Elovitz, 64, could have had his voice restored to normal within weeks of the first surgery with a simple, corrective procedure at Vanderbilt University, but Elovitz declined. Elovitz testified he feared such a surgery, considering what he had already experienced at BMC Princeton.

Elovitz, whose case was handled by lawyers Jeff Kirby and Elizabeth Roberts of the Pittman, Hooks, Dutton and Hollis firm, said he would not have sued if UAB cardiac physician George Zorn had not said Ladden had fallen below the standard of care.

Two jurors left Circuit Judge Allwin Horn III's courtroom in tears after deliberating less than an hour. One said she felt sorry for Elovitz but did not find that Ladden had committed malpractice. Another said it would have been malpractice if Ladden had not done a biopsy of the lymph node.

Jurors heard testimony of how when Elovitz attempted to return to work, his voice was squeaky or shallow, and even sounded like a cartoon character or a woman at times. Elovitz testified he eventually closed his practice in 1998 when he couldn't find work. He said his voice has improved, but it can still fade to a whisper at times.

Elovitz, also a rabbi, claimed the loss of his voice affected his livelihood and prohibited him from teaching classes and singing in the temple. Testimony showed Elovitz made an average of $143,000 annually prior to surgery and now receives $17,000 in social security benefits. Roberts had sought $1.5 million for lost wages.

The jury also found in favor of Cardio-Thoracic Surgeons PC, Ladden's former medical group. Ladden currently works as a surgeon in Texas.

Last week's trial was the second time a jury heard the case. The first trial ended in a mistrial in 2000, with a jury vote of 11-1 for the defense.

From The Birmingham News, Jefferson County, Alabama