Perko is an attorney in the Columbus, Ohio office of Reminger Co, LPA, where she specializes in medical malpractice defense litigation and transactional matters.
A tumor in a stone patient results in a $4.5 million settlement.
A 49-year-old male patient presented to his urologist for right flank pain and was diagnosed with probable kidney stones. The urologist recommended extracorporeal shock wave lithotripsy. That procedure was ultimately successful and the kidney stones resolved.
As part of his pre-procedure workup, the patient submitted to a computed tomography scan on a Friday afternoon, which revealed findings suspicious for colon cancer. The second page of the radiology report, faxed to the urologist the same day, stated: “soft tissue mass involving the descending sigmoid colon suspicious for colonic neoplasm… further evaluation with a colonoscopy is recommended.” However, the urologist failed to read the second page. As a result, no further workup was done.
Seventeen months later, the patient was turned down for life insurance due to elevated carcinoembryonic antigen levels in his blood, indicating a probable cancer. That test led to a workup that diagnosed colon cancer 2 months later.
Suit brought against urologist, radiologist, hospital
The patient brought suit against his urologist, the radiologist, and the hospital. He claimed the radiologist was negligent in failing to personally convey the unexpected and significant finding regarding the mass to the urologist, and that the urologist was negligent for failing to read the second page of the radiology report. He claimed the hospital was vicariously liable for the radiologist’s negligence. The patient claimed that had the cancer been properly diagnosed 19 months earlier, he would have had a 50% to 80% chance of 5-year survival, yet because the cancer had metastasized he was essentially left with a 0% 5-year chance of survival.
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The patient further contended that although he would have required surgery and an initial course of chemotherapy even if the cancer had been timely diagnosed, he would not have needed the extensive second abdominal surgery, as well as the second, experimental course of chemotherapy, which he continues to take.
During pre-trial discovery depositions, the radiologist testified that immediately after he interpreted the patient’s CT scan, he telephoned the urologist to advise of the results. However, the radiologist testified that he could not reach the urologist, and instead left his name and the name of the patient about whom he was calling, but did not leave any substantive information about the scan. Instead, he faxed the report to the urologist.
In accordance with hospital protocol, the radiologist testified at his deposition that he filed a “ticket” with the hospital’s radiology computer system, which resulted in the radiology department secretary calling the urologist’s office Monday morning, the next business day. Hospital records indicated that the secretary confirmed that the faxed radiology report had been received.
The urologist testified at his deposition that he had read the radiology report, but did not see the critical statement as to the finding of the mass on the second page. The urologist testified that when he read the first page, it appeared to show everything he needed to know regarding prepping for the lithotripsy, and he never noticed there was a second page.
The patient’s expert testified in his pre-trial deposition that the radiologist breached the standard of care by failing to personally convey the unexpected and suspicious findings to the urologist. He was critical of the radiologist for failing to document his telephone call to the urologist, and further critical that if such a phone call had been made, the standard of care requires a personal follow-up by the radiologist to the urologist to address the critical and suspicious findings on the CT scan.
In response, the defendant radiologist’s expert testified in pre-trial deposition that the radiologist met the standard of care by faxing the report to the urologist’s office, and then confirming that the office had received the report the following business day.
In pretrial deposition discovery, the patient’s expert oncologist opined that had the colon cancer diagnosis been made in a timely fashion, the cancer was then likely only Stage IIB or at worst, IIIA, and testified that the 5-year survival rate for Stage IIB colon cancer is approximately 75% to 80%. He testified also that the prognosis for early Stage III has a 50% to 75% 5-year survival rate.
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However, the plaintiff’s expert oncologist testified that when the cancer was finally diagnosed, it was at least late Stage IIIB and probably Stage IV, and the 5-year survival rate was essentially 0%. The patient’s expert oncologist also opined that had the cancer been diagnosed when it should have been, any metastasis would have been far less widespread and the patient would not have been required to undergo the second surgery, nor the subsequent experimental round of chemotherapy.
In the face of such grim facts and circumstances, the case settled prior to trial for $4,500,000, with $2,300,000 from the defendant urologist and $2,200,000 from the co-defendants radiologist and hospital.
LEGAL PERSPECTIVE: Going forward, this urologist will never fail to read any radiology report in its entirety, and this radiologist will most certainly follow up and document each and every attempt to communicate suspicious findings. What began as a routine and successful lithotripsy ended in a delayed diagnosis, lost chance of survival, and scores of extensive surgeries and continued chemotherapy treatment. Given the fact that all involved agreed that the mass was indicative of colon cancer, and the dramatic impact of the diagnosis delay to this middle-aged man, this case presented challenging circumstances for all involved. If the case proceeded to trial, it could have likely returned a daring verdict, perhaps even above the settlement amount, in the hands of a jury.