February 23, 2009 : Deborah A. Kane Obtains Defense Verdict in Medical Malpractice Trial
Pittsburgh partner Deborah A. Kane prevailed in a medical malpractice case that she tried in Jefferson County, Pennsylvania. In the case, the daughter of the decedent claimed that the defendant family practice physician failed to timely diagnose her mother’s lung cancer. The patient, a 63-year-old woman with a lengthy smoking history, was treated in the physician’s office for a variety of chronic conditions, and had a distant history of breast cancer. In 2003, she came to the office with a cough and fever, and was diagnosed with pneumonia following a chest x-ray ordered by the physician. On the follow-up chest film, taken a week later, the pneumonia had resolved but the radiologist spotted a bulla formation in the right apex of the lung. The physician was aware of these findings, as they had been seen on previous chest films dating back at least a decade, and were believed to represent scarring from radiation therapy received by the decedent in treatment for her breast cancer. The radiologist, unaware of the history, suggested an elective high-resolution CT scan for thorough mapping of the lungs. The physician ignored this suggestion and did not even think it significant enough to discuss with her patient. Two months later, the patient complained of a recent onset of intermittent right-sided pain. Another chest film was ordered, and was negative, but the same radiologist again recommended a CT scan for “determination” of the bulla formation. Finally, in early 2004, the patient again had a chest x-ray due to flu-like symptoms. That chest film was negative for pneumonia, and again the same radiologist noted the bulla formation in the right apex. But this time, there was no recommendation for a CT scan.
In September 2004, six months after the last chest film was taken, the patient became ill, and was eventually diagnosed with stage IIIB lung cancer. The cancer was not located in the right apex, but in the hilar region of the right lung. After a thoracotomy and related procedures, the patient suffered a stroke and died three weeks following her diagnosis.
The plaintiff’s theory was that if the CT scan had been ordered as recommended by the radiologist in 2003, the cancer would have been found and the patient would have had an 80 percent chance of survival. Plaintiff’s experts acknowledged that the physician was not required to follow the radiologist’s recommendation, but that she should have discussed the recommendation with her patient in order to allow the patient to be fully informed of the options available. Defense experts testified that there was no medical reason to order a CT scan at the time, as the bulla were known and stable, and the only reason to “map” them would be to perform a lung resection, which was not necessary for this patient. Furthermore, the patient had had a completely negative PET scan a few months before the first chest x-ray in 2003, which indicated that she likely did not have a lesion large enough to be spotted on a CT scan in 2003. Unfortunately, this patient had a very aggressive form of lung cancer, and was among the 86 percent of patients who die of the disease regardless of when it is diagnosed.
Plaintiff made a settlement demand of $800,000. No offer was made. After two hours of deliberation, the jury returned a verdict for the family practitioner.
File Under: Results, Medical Professional Liability