Our Record of Success

Kelleher v. Defendant Primary Care Physician

Mark Burden and Mark Borree successfully defended a primary care physician who, along with a co-defendant, was sued for $4.7 million.

For 10 years, the defendant had been the primary care physician of a woman with a history of lung problems, including chronic obstructive pulmonary disease. After presenting problems breathing, the plaintiff was admitted to the hospital and had a chest CT, which showed an abnormality.

The defendant physician had a pulmonologist examine the patient, and he asked that the plaintiff have a second CT scan to determine if the nodule he saw was an inflammatory reaction to an infection or if it was cancer. He said the CT scan could be done as an out-patient procedure once the plaintiff was discharged from the hospital.

After the plaintiff was discharged with an improved condition, she followed up with the defendant physician and pulmonologist a number of times over the next few months but did not arrange for an additional CT scan. Within a year, the plaintiff presented with cancer and died.

The plaintiff argued that the physician should have confirmed a CT scan had been arranged and should have followed up with the pulmonologist.

DBMS argued that the patient was told she should have a CT scan and was aware of the potential consequences but chose not to have the test. An expert witness also testified that the patient assumes some responsibility for having tests done.

The defendant physician was found not guilty.