March 26, 2012
A Philadelphia jury has awarded more than $3 million to a woman whose colon cancer went undiagnosed for nearly two years.
The jury delivered the 10-2 verdict on March 19 in Philadelphia Common Pleas Court Judge Mark I. Bernstein's courtroom after about a day of deliberations following a five-day trial.
In Goncalves v. Brown, according to the plaintiff's memorandum, plaintiff Marlene Goncalves, then 34, was admitted to the emergency room at defendant Jeanes Hospital on June 13, 2006, complaining of lower abdominal pain and bloody stool.
Defendant Dr. Mark G. Brown, a radiologist with Northeast Imaging Associates of Philadelphia, performed a CT scan of Goncalves' pelvis and abdomen and found nothing abnormal, according to the plaintiff's memorandum.
The next day, Goncalves underwent a diagnostic laparoscopy and appendectomy, performed by another doctor, in order to rule out appendicitis, and a ruptured right ovarian cyst was discovered, the plaintiff's memorandum said.
On June 15, 2006, Goncalves was given a prescription for Percocet and sent home, according to the plaintiff's memorandum.
But on Feb. 26, 2008, Goncalves returned to the emergency room at Jeanes Hospital with sharp abdominal pain, nausea, headaches and diarrhea. She underwent a right upper quadrant sonogram to rule out an inflamed gallbladder, according to the plaintiff's memorandum.
The sonogram found no gallbladder inflammation but did note a "somewhat rounded hyperechoic mass with shadowing" — an unidentified blemish — of "uncertain significance," according to the plaintiff's memorandum.
On March 6, 2008, a follow-up CT scan of Goncalves' abdomen and pelvis at Jeanes Hospital showed a slightly contracted gallbladder, along with a small cyst and a small amount of free fluid in the deep pelvic region, according to the plaintiff's memorandum.
On March 14, 2008, Goncalves was again admitted to the emergency room at Jeanes Hospital with abdominal pain and an emergency physician's review of the March 6, 2008, CT scan found a mass in Goncalves' transverse colon, the plaintiff's memorandum said.
Goncalves underwent a colonoscopy on March 25, 2008, which confirmed that there was an ulcerated mass in her transverse colon. A biopsy was performed that same day, revealing "adenocarcinoma with a mucinous component," according to the plaintiff's memorandum.
On April 7, 2008, the plaintiff's memorandum said, a doctor at Albert Einstein Medical Center performed a laparoscopic extended left hemicolectomy, and she was found to have stage III carcinoma of the colon.
The plaintiffs alleged in their memorandum that Brown and Jeanes Hospital were negligent for failing to detect the cancer when he performed the CT scan on Goncalves in June 2006.
"In the time between June 13, 2006, and March 6, 2008, the volume of the malignancy increased greater than nine times," the plaintiff's memorandum alleged. "This delay of 22 months caused Ms. Goncalves' colon cancer to progress from a localized tumor (stage I or II) to a stage III, with multiple lymph nodes involved with microscopic metastases, which was a circumstance that eliminated her chance of cure by surgical resection of the tumor and greatly reduced her chances of remaining disease-free for a prolonged time."
But Brown argued in his own pretrial memorandum that two other radiologists also failed to identify the malignancy after him, which "confirms that this was a difficult diagnosis."
Defendant Jeanes Hospital, which was sued on the basis of agency, presented a similar defense in its own pretrial memorandum.
Brown's radiology expert, Dr. Hayler H. Osborn of Gladwyne, Pa., wrote in his report that he reviewed the June 2006 CT scan with no knowledge of the case and did notice one questionable area.
But Osborn added in his report that a diagnosis of colon cancer would have been a difficult one to make because the location of the questionable area was more indicative of possible acute appendicitis and because Goncalves was only 34 at the time, placing her in an age group where colon cancer is "extremely rare."
According to Osborn's report, Goncalves was predisposed to colon cancer because of an underlying condition called Lynch syndrome.
Osborn said in his report that he believed "the vast number of radiologists would have missed that lesion in June 2006."
But Goncalves' attorney, James Waldenberger of Kline & Specter in Philadelphia, said a turning point in the trial came when Osborn denied during cross-examination that he would have made a note of the questionable area he noticed on the CT scan.
Waldenberger said he felt that answer hurt Osborn's credibility with the jury.
Both Jeanes and Brown also argued in their pretrial memorandums that Goncalves had stage III cancer in both June 2006 and April 2008, so her condition did not deteriorate because of the delayed diagnosis.
But Goncalves' treating oncologist, James C. Arseneau, testified that Goncalves now has only a 50 percent chance of survival over the next five years, as opposed to 90 percent or more had her cancer been diagnosed and treated in June 2006, according to the plaintiff's memorandum.
The plaintiff's actuarial expert, David L. Hopkins of West Conshohocken, Pa., opined that, assuming a life expectancy of 43 more years, the minimum cost of Goncalves' future care would be more than $4 million, according to the plaintiff's memorandum.
The jury awarded Goncalves a total of $3,047,833 — $46,000 for past medical expenses, $819,890 for future medical expenses, $132,000 for past lost earnings, $1,769,318 for future lost earnings, $100,000 for future lost earnings and $180,625 for past pain and suffering.
Reached for comment, Jeanes Hospital's attorney, Richard Galli of Galli & Reilly in Bala Cynwyd, Pa., said in a statement on behalf of his client, "Prior to trial, Jeanes Hospital entered into an agreement with plaintiff to limit its liability."
Waldenberger confirmed that an agreement was reached in which Jeanes Hospital agreed to pay a lump sum amount in the event of a defense verdict and a higher lump sum amount in the event of a plaintiffs verdict, which would offset part of the award.
Neither side would disclose the specific terms of that agreement.
Waldenberger said Brown is responsible for the remainder of the award after Jeanes Hospital's payment.
Counsel for Brown and Northeast Imaging, Nancy K. Raynor of Raynor & Associates in Malvern, Pa., said she felt the jury's verdict was "certainly against the weight of evidence," particularly with regard to damages.
Goncalves had claimed in her pretrial memorandum that one of the drugs used in her chemotherapy — oxaliplatin — caused permanent neuropathy and cold hypersensitivity.
But Raynor said the defense disputed these claims at trial.