The medical malpractice lawsuit of a North Platte man who claimed a nasal surgery cost him his sense of smell is now in the hands of 10 Lincoln County jurors.

FREE Mobile Banking NOW AVAILABLE!

After four days of testimony, the jurors began deliberating whether Steven R. Hinze, a North Platte dentist, was negligent when he performed nasal surgery on Stewart Clow of North Platte.

Clow, 35, lost his sense of smell about a month after Hinze performed the surgery in January 2005.

Clow had originally gone to the Great Plains Regional Medical Center with severe tooth pain that year and they referred him to Hinze. Hinze diagnosed that Clow needed three wisdom teeth pulled. During the examination, Hinze noticed that Clow was having difficulty breathing through his nose and suggested the surgery as a solution.

Clow agreed to the procedure and it was performed the same day the teeth were pulled.

Hinze used a procedure called radiofrequency ablation in which a probe is placed directly into the nasal tissue. Radio waves travel through the probe and cause ionic agitation and therefore friction. The friction creates heat, which kills the cells in the tissues, and they fall out of the nose. The nasal path is thus enlarged making it easier to breath.

Hinze could set the machine to control the heat and how widely it was dispersed on the nasal tissue.

Clow and his attorney, Jason Ausman from Fremont, believe Hinze put too much heat on Clow’s nasal tissues, which caused an infection that led to his loss of smell.

Clow contends that he complained to Hinze after the surgery but Hinze and two members of his office staff testified that Clow never alerted them about pain or frequent nosebleeds after the surgery.

Clow claimed that Hinze told him during a follow-up session that what he was experiencing was normal. Hinze denied it.

Clow eventually went to Dr. Philip Fitzpatrick – an ear, nose and throat specialist – who diagnosed the nasal infection and who performed another surgery to remove infected and exposed bone.

Clow then went to two nose specialists, one in Omaha and another in Philadelphia Pa., but has never been able to regain his sense of smell.

Ausman told the jury of six men and four women that it was unlikely that Clow would ever smell again. He also said that 95-percent of a person’s sense of taste was based on the sense of smell. He said Clow could only taste whether food is sweet, salty, sour or bitter but that he cannot appreciate the flavor of food.

Ausman also said Clow, an engineer for Union Pacific Railroad, was in more danger because he can’t smell smoke or toxic chemicals. Ausman said a fellow UP employee asked Clow what he was doing staying in an engine after battery acid had leaked onto the floor but Clow never smelled it.

Ausman said Clow will never know if milk or other food has gone bad and that he can’t smell freshly cut grass, fresh baked bread, his parent’s familiar house smells or his own family.

Ausman said Hinze transferred too much heat to the soft tissue in Clow’s nose during the procedure and violated the standard of care necessary to prevent such damage. He presented two expert witnesses who blamed Hinze’s surgery for Clow’s condition.

“He would not have lost his sense of smell but for Dr. Hinze’s negligence,” Ausman said.

Ausman said he was seeking $50 a day for Clow for the rest of his life since age 32 and presented evidence that it should be 41.16 years or more than $756,000 at least.

Ausman told the jury that Clow has to live with the consequences of Hinze’s neglect every day of his life and with every breath he takes.

“A person breathes about 15 times a minute,” Ausman said. “That’s 20,000 opportunities a day to smell that Stewart does not have.”

But Mark Novotny, Hinze’s attorney from Omaha, called that amount of money “shocking.”

Novotny introduced medical testimony that contradicted Ausman’s experts. Novotny argued that the infection Clow got after the surgery was an unfortunate complication that sometimes occurs during surgery and did not indicate Hinze was negligent.

In fact, Novotny partially blamed Clow. He said if Clow had actually gone back to Hinze with the complaint in 2005 he might have been able to treat the infection and prevented his loss of the sense of smell.

Novotny suggested that the best evidence came from the medical records and reports that were prepared by Hinze, his staff and Fitzpatrick at the time. He said they were more believable and credible than paid out-of-state witnesses.

“Why weren’t Clow’s complaints listed in the notes from the time?” Novotny asked. He said the complaints weren’t in the notes because Clow never complained to Hinze.

Novotny said Hinze was in the healing people business and that no one was more sorry about what happened to Clow but that no scientific evidence was presented that the infection caused the loss of his sense of smell.

Novotny also presented the consent form Clow signed that warned of the risks of the surgery.

“He was advised of the risk and accepted the risk,” Novotny said.

One thing the attorneys both agreed on was that Hinze and Stewart and Lisa Clow were nice people.

“Dr. Hinze is one of the kindest and most complete doctor I’ve ever met,” Novotny said.

“I’m not saying Dr. Hinze is a bad doctor or shouldn’t practice medicine,” Ausman said. “But he’s human and makes mistakes. He just got it wrong this time.”

Each attorney took 40 minutes during his closing argument to the 10 jurors. Two of the 12 jurors originally selected on the first day of the trial were disqualified after jury selection. One juror’s wife reminded him that he was kin to Hinze’s wife. The other juror did not disclose a pending divorce case she is going through in Lincoln County District Court.

Novotny moved for a mistrial after each juror was disqualified but Lincoln County District Judge Donald Rowlands overruled the motion.

During Ausman’s rebuttal, he read the jury a short poem written by Helen Keller.

After the jury left the courtroom to begin deliberations, Novotny objected and moved for a mistrial for the third time during the trial.

Rowlands allowed it because it could have been seen as relevant and didn’t think the poem would inflame the passions of the jury.

The jurors must reach a unanimous decision if they deliberate less than six hours. If deliberations go longer than six hours, it only takes nine jurors to agree to reach a verdict.