DBMS secured a verdict for the defense in a wrongful death and survival action jury trial based on allegations of failure to diagnose lung cancer.
In February 2012, a 68-year-old mother and grandmother had an abnormal CT scan of the lung that showed two lesions in her left lung, one in the upper lobe and one on the lower lobe.
The woman’s internal medicine physician referred her to the defendant pulmonologist, who saw her in February, March, and April 2012. The defendant testified that during the third visit in April 2012, the defendant recommended a bronchoscopy to obtain tissue to biopsy for suspected lung cancer. The defendant agreed at trial that the standard of care required that she recommend bronchoscopy or some other form of tissue sampling to investigate a high probability of lung cancer at that time. According to the defendant, the patient and her daughter stated that the patient had plans to travel out of the country for four months and would have the procedure done upon her return. The defendant did not document a recommendation for tissue sampling in the medical record but documented only the recommendation that the patient return in four months and obtain a repeat CT scan in six months. The patient never returned to the pulmonologist’s office and did not obtain a follow-up CT scan.
The patient’s daughter testified at trial that the defendant never recommended a bronchoscopy and that they would have followed such a recommendation immediately had it been made. She was impeached on cross-examination with her prior sworn testimony describing the procedure as explained by the defendant, although she did not recognize the term “bronchoscopy.”
In October 2014, the patient was hospitalized with breathing difficulties, the pulmonologist was consulted and performed a bronchoscopy, and she was diagnosed with Stage 4 lung cancer. She passed away in January 2015.
The plaintiff argued that the defendant never recommended bronchoscopy in April 2012. It was undisputed that “best practice” would have been to document the recommendation in the medical record, which the defendant did not do. The plaintiff claimed that if the patient’s cancer had been diagnosed in April 2012, it would have been Stage 1, and she would have survived. In closing arguments, plaintiff’s counsel asked the jury to award $2.61 million.
In addition to the defendant’s testimony, the defense presented circumstantial evidence that the pulmonologist had made a recommendation for tissue sampling during the April 2012 visit. The defense argued that the decedent and her daughter were given news they did not want to hear and could not accept: she likely had lung cancer. After this visit, their behavior changed from being compliant to failing to follow the physician’s reasonable medical advice in order to avoid the diagnosis. The defense further maintained that even if the cancer was diagnosed in spring 2012, the presence of lesions in both lobes of the left lung with lymph node involvement indicated her cancer was already Stage 3 or Stage 4 with no reasonable chance of a cure.
After deliberating approximately seven hours over the course of two days, the jury found the physician not guilty.