Perko is an attorney in the Columbus, Ohio office of Reminger Co, LPA, where she specializes in medical malpractice defense litigation and transactional matters.
"In this case, a key component to the defense verdict was the fact that the defendants were able to provide convincing expert testimony regarding the outcome of the decedent’s situation if the diagnosis had been tendered earlier, as argued by the plaintiff," writes Acacia Brush Perko, Esq.
In this medical malpractice matter, the plaintiff alleged that the defendant urologist and radiologist failed to timely diagnose and treat the decedent’s cancer, which metastasized and resulted in death. The defendants denied the allegations and maintained there was no deviation from acceptable standards of care.
The 73-year-old male decedent came under the care of the defendant urologist for surgery. As part of the preoperative work-up, a chest x-ray was performed, which was interpreted by the defendant radiologist. The x-ray report was sent to the decedent’s primary care physician, but not to the urologist. The x-ray showed a lung lesion that did not appear on an earlier x-ray. The decedent was later diagnosed with and died from metastatic lung cancer.
Suit brought against urologist, radiologist
The plaintiff brought suit against the defendant urologist and radiologist, alleging that the defendants should have followed up on the x-ray. The plaintiff contended that the suspect finding required the defendant radiologist to contact the referring physician, the defendant urologist, and the primary care physician directly to communicate his findings.
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Further, the plaintiff contended that the defendant urologist was negligent in failing to follow up and obtain the results of the x-ray that he had ordered. The plaintiff contended that if the defendants had complied with the applicable standards of care, the decedent would have been diagnosed sooner and had a better chance of preventing the cancer from spreading.
The defendants denied the allegations and maintained there was no deviation from acceptable standards of care. The defendant radiologist maintained that he was under no obligation to circulate the report to the various doctors as the plaintiff alleged. The defendant presented evidence that the end result would not have changed if the decedent had been diagnosed earlier.
At the conclusion of the trial, the jury deliberated for approximately 4 hours before returning its verdict in favor of the defendant and against the plaintiff.
LEGAL PERSPECTIVE: Proving negligence in a medical malpractice case is difficult. As in any medical malpractice action, the plaintiff has the burden to prove by a preponderance of the evidence: the existence of a standard of care within the medical community, breach of that standard of care by the defendant, and proximate cause between the medical negligence and the injury sustained.
The appropriate standard of care is what a medical professional of ordinary skill, care, and diligence in the same medical specialty would do in same or similar circumstances. Standard of care in a medical malpractice case is that level of care of a reasonable practitioner in the same field under the same or similar circumstances. Of course, breach of a standard of care alone is not enough to prove a medical malpractice case. A plaintiff must also prove that the patient sustained an injury that was proximately caused by the breach. Ultimately, the plaintiff must prove causation through medical expert testimony in terms of probability to establish that the injury was, more likely than not, caused by the defendant’s negligence.
Next:"Juries nationwide are typically tough on medical malpractice plaintiffs"Juries nationwide are typically tough on medical malpractice plaintiffs. At the end of the day, medicine is hard, and there is often no one right way to do something. Additionally, juries tend to believe that most doctors try their best, and not all patients have a good outcome. And, even if a patient-plaintiff experiences a bad outcome, that does not mean that someone did something wrong.
That principle seemed to carry the day in this case.
Here, a key component to the defense verdict was the fact that the defendants were able to provide convincing expert testimony regarding the outcome of the decedent’s situation if the diagnosis had been tendered earlier, as argued by the plaintiff. The defense was able to sway the jury through the expert oncology testimony that the outcome would not have been different if the cancer had been diagnosed earlier.
The defendants’ expert opined that the cancer most likely had metastasized prior to the initial x-ray that was taken. As such, the expert’s opinion was that the alleged delay in diagnosis of the cancer did not have a detrimental effect on the outcome. The cancer was already metastasized and most probably the outcome to the decedent would have been identical, regardless of whether the cancer was diagnosed and treated at any earlier date.
The plaintiff argued that the urologist failed to follow-up on the x-ray that he had ordered. The defendant urologist argued that the x-ray findings did not alter the urologist’s decision regarding the surgery and that, at all times, he acted within the applicable standard of care. The urologist maintained that he was under no additional obligation as the plaintiff contended. Since the x-ray report did not indicate that surgery was not appropriate, the defendant proceeded and argued that he had no other duty.
The plaintiff attempted to argue that the radiologist was under a higher duty to directly reach out to the decedent’s doctors to communicate his findings. The defendant radiologist maintained that he complied with the standard of care by supplying the doctors with copies of his findings and he had no other duty to follow up, since there were no other x-ray reports to compare or further workup required. Since the plaintiff was unable to demonstrate, to the jury’s satisfaction, that causation had been established, a defense verdict was tendered.
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