Defense Verdict in Failure to Diagnose Case

On February 6, 2012, Partner Kevin Tepas obtained a defense verdict on behalf of his clients, a local gastroenterologist and his group, in a medical malpractice action in Stamford Superior Court. The plaintiffs claimed that the defendant physician failed to timely diagnose and remove a tumor in the patient’s cecum (part of the large intestine) and that because of this failure the plaintiff’s decedent lost an opportunity to successfully treat her colorectal cancer and ultimately died from that disease.

The plaintiffs claimed that during the four years prior to their decedent’s death the patient presented to the defendants and other physicians with numerous intestinal complaints that were consistent with colon cancer, but that the defendant physician failed to diagnose the cancer. In particular, plaintiffs claimed that because the defendant physician failed to properly perform a colonoscopy in 2004 he failed to detect and remove a precancerous lesion before it metastasized, depriving the patient of a chance for survival. By the time the patient’s cancer was diagnosed in 2006 it had metastasized to other the liver and organs and the patient died shortly thereafter.

At trial, the defendants’ liability expert testified that the defendant physician acted appropriately and within the standard of care in considering the patient’s significant history of adenoma free colonoscopies, including an adenoma free colonoscopy in 2002, in determining that a repeat screening colonoscopy was not necessary in 2004 and instead proceeding with a more limited diagnostic colonoscopy to assess the patient’s complaints. The defendants’ liability expert further testified that the defendant physician’s conclusion that upper GI pathology adequately explained the patient’s iron deficiency anemia in December 2005 and that a repeat screening colonoscopy was not necessary at that time in view of the upper GI findings was appropriate and complied with the standard of care. During an exploratory surgery 6 months later the patient was found to have a cecal lesion with metastasis to the liver.

In addition to their liability expert, the defendants presented causation testimony from an expert oncologist who testified that the patient’s cancer was exceptionally aggressive and likely metastasized shortly after the lesion became malignant. Because of this tumor’s unusually aggressive nature, a diagnosis in December 2005 would not likely have changed the patient’s course or delayed her death.

In his closing arguments, the plaintiff’s attorney suggested to the jury that they award the plaintiff more than $1.2 million for expenses, pain and suffering, and the patient’s lost chance for survival. After approximately 3 hours of deliberation, the jury returned a verdict for the defendant physician and his group. The jury specifically found that the defendant physician had complied with the standard of care and was not negligent. The jury did not reach any findings regarding causation.