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Baltimore doctor wins $3M for repetitive-use injury

A Baltimore doctor was awarded $3 million by a U.S. District Court jury that found she lost the fine-motor skills needed to be a cosmetic dermatologist after regularly operating a piece of medical equipment.

Dr. Supriya Goyal worked as a research fellow with the Maryland Laser, Skin & Vein Institute LLC for doctors Robert and Margaret Weiss, a husband-and-wife team. That’s where she often used Thermage Inc.’s ThermaCool device, which she said caused her to develop an ulnar nerve entrapment affecting her hand and arm.

The injury kept her out of work for a year, her lawyer, Lawrence S. Kaye said, and forced her to later find work as a medical dermatologist, rather than follow the career path she had hoped in cosmetic dermatology.

Following a 13-day trial in September, jurors found that the ThermaCool device, despite reasonable care taken by Thermage in its design, was “unsafe for its reasonably foreseeable use,” that the danger was not obvious to users and that Thermage failed to warn users about it.

The jury awarded Goyal $2.25 million in economic damages and $750,000 for pain and suffering against California-based Thermage.

Kaye, of the Kaye Law Firm in Gaithersburg, said the pain and suffering award will likely be reduced by $100,000 under the state’s cap on non-economic damages.

Thermage’s attorney, Michele R. Kendus, with Baltimore-based Goodell, DeVries, Leech & Dann LLP, declined to comment, but the company issued a statement that it planned to “aggressively” appeal the decision.

“The jury disagreed with the plaintiff and found that we did use appropriate care in the design, manufacture, testing and inspection of our product. Our issue is with the suggestion that a hand-operated device — like thousands of others from screwdrivers to computer keyboards — would somehow require a notice to users of potential repetitive use injuries.  We are confident that we will ultimately prevail.”

Goyal, who was valedictorian of her graduating class at the University of Maryland and in the top quartile of her medical school class at the Johns Hopkins University in 2000, turned down a job at Mercy Hospital in Baltimore with a salary of $250,000 in favor of the one-year position as a research fellow at the Weisses’ institute, according to the complaint.

She began working there in early fall 2004, assisting with research study patient treatments and writing and publishing the results of clinical research. As part of her job, Goyal also had the opportunity to use and try lasers in the office and treat some patients.

According to the complaint, Goyal performed the majority of the Thermage treatments given to patients. The ThermaCool device applies radio-frequency energy to the patients’ face and neck to tighten skin and rid it of signs of aging. Using the device requires repeated pulsing of a button to activate the radio-frequency energy.

As part of a study being done at the institute and other practices nationwide, doctors had to treat patients with a higher repetition of pulses — 550 per patient — at a lower frequency, according to the complaint. Kaye said Thermage provided no warnings to users that using the ThermaCool device could cause harm.

“Thermage received complaints from physicians that people were having trouble using the device, holding it comfortably,” Kaye said. “The individuals who took down this information never passed it on. One of the individuals admitted when he left the company he either didn’t document these complaints or threw away complaints that he had documented, and I think the jury found that troubling.”

Kaye said the ThermaCool hand piece was poorly designed, requiring Goyal to hold it at an extreme angle while pulsing it, causing damage to her hand and arm. When she complained to her bosses that she was feeling pain in her arm, they told her to take over-the-counter medication to make the pain subside.

Around Jan. 4, 2005, Kaye said, Goyal’s pain would not go away by taking medication.

That March, with five months remaining on her one-year contract, the Weisses terminated Goyal’s employment.

“We subsequently discovered that the Weisses had purchased 10,000 shares of Thermage stock, while they were telling her there was nothing to worry about,” Kaye said, referring to allegations made by Goyal in a separate breach of contract lawsuit against her employers.

Goyal filed the suit against her former employers in May 2005, under her married name, Supriya Bellew.

Kaye said Goyal is still doing battle with the Weisses in Baltimore County Circuit Court over her termination, among other issues. The Weisses’ attorney, however, said the contract case settled on May 9. Jody Maier, with Levin & Gann P.A. in Towson, said they have moved to enforce the settlement.

“Mr. Kaye is alleging the [contract] case did not settle,” Maier said, “when in fact, it did settle.”

Goyal v. thermage Inc.

Court:

U.S. District Court (Baltimore)

Case No.:

WD-08-0020

Proceeding:

Jury Trial

Judge:

William D. Quarles Jr.

Outcome:

Plaintiff

Award:

$3 million

Dates:

Incident: Jan. 4, 2005

Suit filed: Jan. 2, 2008

Disposition: Sept. 29, 2011

Plaintiff’s Attorney:

Laurence S. Kaye of The Kaye Law Firm in Gaithersburg

Defense Attorney:

Michele R. Kendus of Goodell, DeVries, Leech & Dann LLP

Count:

Product liability, negligent failure to warn