The South Carolina Court of Appeals stated in its opinion filed on September 14, 2017, “In this highly technical field, where there may not be clear markers indicating by what method a cancer spreads, it was an error of law to direct a verdict in favor of Respondents because Dr. Singer [the plaintiff’s medical malpractice expert who testified at trial] did not definitively indicate by what method the cancer metastasized … If a plaintiff presents an expert who testifies, to a reasonable degree of medical certainty, and with supporting scientific evidence, that the plaintiff’s cancer is a metastasis, the plaintiff has met its burden to overcome a directed verdict.”
The Underlying Facts
On January 11, 2010, the defendant pulmonologist examined the plaintiff’s’ father, who was a lifelong smoker, who had complaints of trouble breathing. The defendant ordered a chest x-ray that she interpreted herself as not showing any nodules in his lungs, which would signal cancer. The defendant determined that the man suffered from hyperinflation and diagnosed the man with dyspnea, COPD, nondependent tobacco use disorder, and hypoxemia. The defendant told the man to stop smoking and to return to the clinic in six months, in order to determine if he stopped smoking. The man did not return for his follow-up appointment.
The man continued to have trouble breathing and therefore saw another physician on October 6, 2010. That physician ordered a chest x-ray that showed a large mass in the man’s right lung. Doctors subsequently diagnosed the man with a nine-centimeter primary lung cancer in his right lung. In December 2010, the man had surgery to remove the cancer after which he began chemotherapy and radiation.
In August 2011, the man developed a tumor in his left lung that was biopsied and was determined in April 2012 to be cancerous. The diagnosis was stage four lung cancer and the man was told he had three to six month to live. The man died on June 19, 2012. The death certificate lists metastatic lung cancer as the cause of death.
The man’s daughter filed a South Carolina medical malpractice wrongful death lawsuit on behalf of her father’s estate and herself, alleging that the defendant pulmonolist breached the standard of care (medical negligence) by failing to diagnose his lung cancer during the January 2010 appointment, which caused the man’s death.
At the close of the plaintiff’s case during the South Carolina medical malpractice trial that took place from July 27, 2015 to July 29, 2015, the defendants requested the trial court direct a verdict in their favor, arguing that the plaintiff had failed to present sufficient evidence of a breach of a standard of care or that any breach caused the man’s death. The trial court denied the defendants’ motion for directed verdict on the standard of care issue, but granted their motion because the trial judge did not believe that the plaintiff presented sufficient evidence of causation, i.e., that the plaintiff failed to present evidence of how the cancer metastasized from the right lung to the left lung, meaning the jury would have to speculate as to the method of metastasis. The plaintiff appealed.
The South Carolina Court Of Appeals Decision
The plaintiff’s medical malpractice expert, who was an expert in medical oncology and hematology, had reviewed the man’s medical records and testified during trial that surgical resection does not remove every cancer cell from a patient, and even in patients with pathologic Stage 1 lung cancer, where every node is negative and every margin is negative, 30 percent die because they have metastatic disease that turns up within a year or two. The expert testified it is more likely than not that the decedent was part of the 30 percent who die without lymph node involvement.
The trial court believed that the plaintiff had the responsibility to prove how the cancer got from one lung to the other. The trial court found that the plaintiff had not presented sufficient evidence to prove how the cancer metastasized from one lung to the other and therefore granted the defendants’ motion for directed verdict, reasoning that allowing the jury to deliver a verdict in this case would require them to engage in improper speculation in determining how this cancer got from one side to the other.
The South Carolina Court of Appeals held that the trial court imposed too high a burden on the plaintiff to prove how the cancer spread from one lung to the other. In this highly technical field, where there may not be clear markers indicating by what method a cancer spreads, it was an error of law to direct a verdict in favor of the defendants because the plaintiff’s medical expert did not definitively indicate by what method the cancer metastasized. If a plaintiff presents an expert who testifies, to a reasonable degree of medical certainty, and with supporting scientific evidence, that the plaintiff’s cancer is a metastasis, the plaintiff has met its burden to overcome a directed verdict.
In the case the South Carolina Court of Appeals was deciding, the plaintiff’s expert’s testimony indicated his professional opinion that the cancer in the decedent’s right lung metastasized to his left lung, even though the margins surrounding the tumor and the lymph nodes were negative for cancer cells. The expert noted cancer cells were found within one millimeter of the edge of the lung resection following the 2010 surgery, and these close margins indicated there’s a great risk that cancer cells may have been left after the surgery. The plaintiff’s expert also testified that surgical resections do not remove all cancer cells, and 30 percent of patients with negative margins and no lymph node involvement subsequently have a recurrence of cancer. Based on his experience, the plaintiff’s expert testified he was 95 percent sure the adenocarcinoma in the man’s left lung was the same adenocarcinoma from the man’s right lung, based in part on when the second tumor appeared.
The South Carolina Court of Appeals held that the plaintiff’s expert’s testimony alone provided a basis by which the jury could have found the cancer metastasized from the right lung to the left lung, which evidence was sufficient to overcome the defendants’ motion for a directed verdict. Therefore, the South Carolina Court of Appeals reversed the trial court’s decision.
Source McKaughan v. Upstate Lung and Critical Care Specialists, P.C., Opinion No. 5515
If you or a loved one may be the victim of cancer misdiagnosis in South Carolina or in another U.S. state, you should promptly consult with a South Carolina medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your cancer misdiagnosis claim for you and represent you or your loved one in a cancer malpractice case, if appropriate.
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