In its decision dated January 20, 2017, the Superior Court of Pennsylvania (“Appellate Court”) affirmed a Pennsylvania medical malpractice jury’s verdict in the amount of $3 million in favor of the plaintiff that found that the two defendant radiologists had breached the standard of care that resulted in the delayed diagnosis of the plaintiff’s lung cancer, and that the two defendant radiologists were each responsible for 50% of the verdict.
The Underlying Facts
The plaintiff developed back pain in 2009 which led to her primary care physician sending her for two MRIs that were done a month apart. One of the defendant radiologists (“first radiologist”) obtained the MRI images that were sent to the other defendant radiologist (“second radiologist”) for review. The second radiologist did not report any lung abnormalities with regard to either MRI.
In 2010, the plaintiff developed a cough and was sent for a chest x-ray that was reviewed by the first radiologist, who reported the chest x-ray as showing no significant pathology.
Because the plaintiff continued to experience bouts of coughing, she was sent back for another chest x-ray in 2012 that was reviewed by the first radiologist, who reported the chest x-ray as showing no significant pathology.
The plaintiff had a third chest x-ray in 2013, for asthma, that the first radiologist read as showing a mass on the plaintiff’s right lung. The first radiologist recommended a CT scan that revealed a 4.8 by 2.5 centimeter mass that was subsequently identified as cancerous (unresectable Stage IIIA non-small cell lung cancer, metastatic to the lymph nodes). The plaintiff subsequently had 33 radiation treatments and endured multiple rounds of chemotherapy.
The plaintiff filed her Pennsylvania medical malpractice lawsuit against the two radiologists, and others, in January 2014, alleging that her lung cancer diagnosis was delayed by four years because the two defendant radiologists failed to detect the mass when they reviewed her various MRIs and chest x-rays.
Shortly before the Pennsylvania medical malpractice trial, the plaintiff began having breathing issues, balance problems, dizziness, and difficulty with memory that led her primary care physician to order a CT scan that showed that the plaintiff’s cancer had metastasized to her brain, which her medical expert opined would almost certainly result in her death as a result of her cancer.
The Pennsylvania medical malpractice jury subsequently found in favor of the plaintiff, finding that the two defendant radiologists were equally at fault, and awarded the plaintiff $1.5 million in economic damages and $1.5 million in noneconomic damages. The second radiologist appealed. The plaintiff succumbed to her cancer after the appeal was filed.
The second radiologist argued in his appeal, among other things, that the plaintiff had failed to prove causation because the first radiologist’s failure to diagnose the plaintiff’s cancer was a superseding, intervening cause of the plaintiff’s harm, which relieved the second radiologist from liability (i.e., if the first radiologist had identified the plaintiff’s cancer in her 2010 chest x-ray, when it was virtually the same stage it was when the second radiologist interpreted the relevant imaging studies in 2009, the tumor was still resectable and the plaintiff would not have required chemotherapy).
The Appellate Court stated that in a medical malpractice case, a plaintiff need not establish that the medical practitioner’s negligence was the “but for” cause of her injuries but rather liability may be established where expert medical testimony is presented to the effect that the practitioner’s conduct did, with a reasonable degree of medical certainty, increase the risk that the harm sustained by the plaintiff would occur: once a plaintiff has introduced evidence that a defendant’s negligent act or omission increased the risk of harm to a person in the plaintiff’s position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.
The Appellate Court stated that a superseding cause is defined as an act of a third party or other force which, by its intervention, prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about — a superseding cause must be an act which is so extraordinary as not to have been reasonably foreseeable.
The plaintiff’s medical expert testified by videotaped deposition at trial that when the second radiologist reviewed the plaintiff’s 2009 MRIs, her cancer would have been classified as Stage 1A and, at that time, the plaintiff would have had an approximately 73% probability of five-year survival, and the tumor could have been fully resected. The plaintiff’s medical expert further testified that in 2010, when the first radiologist reviewed the plaintiff’s first chest x-ray, the plaintiff’s cancer would have been classified as Stage IB and, at that time, the plaintiff would have had an approximately 58% probability of five-year survival, and that the treatment likely would have been surgical resection, although chemotherapy may have also been an option.
The Appellate Court held that the evidence, viewed in the light most favorable to the plaintiff as the verdict winner, established that the second radiologist’s conduct deviated from the standard of care and increased the plaintiff’s risk of harm, noting that the Pennsylvania medical malpractice jury’s equal allocation of liability between the first and second radiologists necessarily indicates that the first radiologist’s negligence did not divest the second radiologist of liability.
The Appellate Court held that it did not discern an abuse of discretion or error of law by the trial court in denying the second radiologist’s request for judgment notwithstanding the verdict on this issue, and therefore the Appellate Court would not disturb the result. The Appellate Court rejected the appellant’s remaining contentions of error.
Source Palar v. Wohlwend, No. 530 WDA 2016.
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