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Plaintiffsâ Lawyer: Five-Month Delay Heightened Probability of Death
Michael A. Riccardi
Of the Legal Staff
A Philadelphia jury Tuesday handed down a $1.197 million verdict in a medical malpractice case stemming from a diagnosis of breast cancer that was delayed by five months.
The 11-person jury took about three hours to estimate damages at $1.25 million in the case and assess five percent contributory negligence to the plaintiff. The decision came at the end of a six-day trial before Judge Richard B. Klein in Philadelphia Common Pleas Court.
With a five-month delayed diagnosis, the issue of whether the delay caused the plaintiffâs damages is problematic, said plaintiffâs lawyer Kenneth M. Rothweiler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C..
Indeed, defense lawyers argued that the cancer of the plaintiffâs decedent, Charmaine Vanvoorhis, who died in August 1997, was far too advanced for a timely diagnosis to have checked it.
Vanvoorhis was 48 years old in October 1994 when she discovered a lump in her armpit, Rothweiler said. She had not detected any lump in her breast. Her family doctor referred her to a surgeon, Donna Angotti, who believed it was simply a swollen lymph node and told her to come back in a month if it got any bigger.
Eighteen days later, the patient went to a second surgeon, Margaret Levy, who ordered a mammogram and ultrasound tests, both of which were negative.
Neither surgeon opted to biopsy the lump, Rothweiler said. It was on an April 1995 visit to Levy that the lump was again detected. This time it was biopsied and found to be malignant. Vanvoorhis died two and one-half years later.
Rothweiler argued to the jury that the surgeons should have ordered biopsies in the fall of 1994, and that if the womanâs cancer were detected, she would have had an improved chance of survival.
Both doctors argued separately that their treatment was within the standard of care.
According the Rothweiler, Angotti said that what she found was an enlarged lymph node that was not necessarily consistent with cancer and that her advice to come back in one month for a second check was appropriate. Angottiâs lawyers said that if the lump had persisted, then the surgeon would have ordered a biopsy.
Levyâs lawyers relied on the fact that the mammogram and ultrasound results were negative, making it less pressing to perform a biopsy.
"But the only way to definitively diagnose cancer is to biopsy," Rothweiler said. "You canât rule out breast cancer with a negative mammogram."
One fact troubling to the plaintiff was that the two defendants, both board-certified surgeons, agreed that no biopsy was required in October and November 1994, Rothweiler said.
The jury found Levy 85 percent responsible for Vanvoorhisâ damages and found Angotti 10 percent responsible. It also found five percent contributory negligence, since there was evidence that the plaintiffsâ decedent in January 1995 found a second lump yet did not arrange to see Levy until April.
Levyâs lawyer, James Phahler of Margolis, Edelstein, could not be reached for an immediate comment yesterday afternoon.
Angottiâs lawyers, led by Terence Pitt of OâBrien & Ryan, minimized their clientsâ role in the case by arguing that at worst, she was responsible for only 18 days of the five-month delayed diagnosis.
There was no offer to settle the case, Rothweiler said. He added that he was preparing a motion for $165,000 in delay damages.
Defense lawyers relied part on the doubling time theory to demonstrate to the jury that Vanvoorhisâ cancer was so far advanced by fall 1994 that the five-month delay made no difference to her prognosis.
"I argued that doubling time is a courtroom theory with no application in the practice of medicine," Rothweiler said. "It is not recognized in any standard text nor is it taught in medical schools."
Defense counsel, Rothweiler said, also stressed that the fact that cancer was discovered in the patientâs lymph nodes indicated that the cancer had metastasized from the breast before the autumn 1994 trips to the surgeons.
While the defenses, according to Rothweiler, never linked up to reinforce each other explicitly, he said that he feared that jurors might consider that it was harder to believe that two doctors would practice below the professional standard of care.
"We had to prove that both surgeons were negligent for the same reason," Rothweiler said.
Source: The Legal Intelligencer 6/24/99
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