Attorney Robert Cosgrove uses real life case scenarios to demonstrate when the diagnosis of melanoma had a legal impact.
uh Next we will have uh bob cosgrove robert uh is one of the good guy attorneys. He represents uh scripts clinic and defense actions when necessary. He co authored, he authored a chapter in a book that you and I did uh and he's going to go through some medical legal verdicts with us and bob take it away. Thank you very much. Good morning everyone. First of all, I'd like to thank everyone for inviting me. This is uh a privilege to be part of this panel uh in the past. When we've consulted attendees at this conference, we found that it's very important and illustrative for us to present cases and the types of issues that come up in melanoma litigation. Uh It's helpful to understand the legal analysis that goes into it as well as perhaps improving your practice to avoid being caught up in the litigation process and with that in mind um I want to address a number of verdicts and settlements that we pulled to illustrate some of these points. Now, I don't know why that is showing up. I've got my there you go. Thank you. Um Could I go back please. There you go. Case study number one. This is a wrongful death action brought by heirs of a 48 year old architect. The cancer was diagnosed early in 2000 and eight and the melanoma of the right calf was cancer free by july. Then there were multiple regular check visits with the defendant, dermatologist. Now, four years after the initial treatment by that dermatologist, the decedent went for skin checks in January and March of 2012 and defendant examined the right inguinal lymph node but failed to of I'm not getting the full uh full impact of that, failed to recognize it was swollen, I'm not seeing the entire script, but this works out fine. Uh Could you go back? I apologize. There you go. In february, the patients all an internist and at that time there was a check but the internet this time noted bleeding and diagnosed this as a hernia. In March 2012 as mentioned, there was an examination and a failure to identify the swelling that existed uh in late october the lump had grown in size of a chicken egg biopsy was undertaken and in december there was a diagnosis of metastatic melanoma originating from the white, right inguinal lymph nodes, diagnosis. In december patient underwent chemotherapy, right leg amputation and then died survived by wife and four kids. Am I apologize? I went through this where they were. There he goes. The plaintiff sued, arguing defended dermatologist, failed to notice the lump was swollen in january. March, the plaintiffs oncologist applied. The decedent had a better chance to be cured And in this case there was a survival testimony that there was uh they indicated that had the diagnosis been made earlier, there was a chance of survival of 50%. Now in California that would not make meet the Litmus test And the burden of proof for the plaintiff. In our situation in our jurisdiction. It's more probable than not greater than 50%. In any event, the lawsuit went forward, huge amount of damages economically from the architectural firm defense argued that in january 2000 and 12 dissidents cancer already a stage four. So here is a, an effort by the defense to argue no, no causation. Nonetheless, The result was $980,000 award. The case against the internist was still pending regarding the diagnosis of swelling as a hernia case study number two wrongful death action brought by errors of a 48 year old male here, the patient presented to the decedent physician with a mole on the inside of the right knee, a shave biopsy occurred, pathologist interpreted this as a benign lesion. The students returned to defendant physician two times when the mold grew back. One year and four months later defended physician burned off the mole. Uh, but on both occasions but did not submit tissue. Six years after the decedent was first seen, a diagnosis with metastatic melanoma occurred and died the following year. So in this situation you have and the reason I point this out is because these lawsuits don't get filed until several years downstream and because of that you're going to be reliant on the photo documentation and the written documentation you have in your chart and this case, for example, you probably, if you were involved in this case, you probably wouldn't be deposed for approximately eight years out from the original treatment, the allegations were failure to perform proper biopsy should have either, should have fully removed the entire lesion rather than shaving it, failure to submit regrowth of the biopsy and the defendant. Pathologist and employer misread the tissue slides as benign instead of malignant defendant physician contended he reasonably relied on defendants pathology interpretation as benign defended pathologist and the employer contended the original slide was in fact benign and that the dissonance melanoma came from some other unknown primary site. The result $1,500,000 reward. Mhm. Next case, it's a personal injury. Would you please go back Is a personal injury action brought by a 28 year old female hairstylist. The primary care physician saw this patient with concerns about an abnormal mole on her left calf. The punch biopsy was performed and the pathologist noted. The mole was a typical in its architectural and cell structure. The pathologist recommended re excision of an entire mole and transmitted the report to defend it. Now, why this is important is oftentimes when physicians get these pathology reports, they look to the bottom line without reading the actual entirety of the pathology report. And I suspect that's what occurred here, potentially four days later the plaintiff presented to defend it. Who removed the structure futures from the biopsy and put a bandage on it. According to defendants. Note, he did not council plaintiff regarding any abnormalities, performer re excision or refer to a specialist for re excision. Now let me comment about that also, in long if you as a doctor, have a duty to refer the patient to a specialist and failed to do so, you can be held to a higher standard, the standard of a specialist. So it's essential to make the right diagnosis to the right person appropriately and timely. Over the course of the next year, the plaintiff saw ah defended on several occasions for unrelated skin issues. But defendant primary care physician never re examine the mole. When you're in three months after the initial visit, plaintiff became concerned about the changes in the mole and presented to the the primary care position. Again at that time, biopsy obtained and it was a stage three B malignant melanoma plaintiff was referred to a dermatologist and oncologist. The mole was re excised and a portion of the left calf was removed. Plaintiff underwent a lumpectomy and of course of interfere on treatment here. As I stated earlier. This is a circumstance where the expert for the plaintiffs argued 50% chance that the patient would have would have survived had it been diagnosed earlier, that would not meet the litmus test in California. But in this jurisdiction it did over the course of the next year, I'm sorry plaintiff also developed lymphedema following the lumpectomy which prevented her from standing on her feet for long periods of time. So here because of the nature of the uh circumstance, she could not work the number of hours or the number of days in this case, the defendant agreed to settle with no admission of liability. You can see the different damages that were alleged in this case and the result $1 Million Award. Next. Here we go. This case. Study # four wrongful death. Please move it back. Thank you. Case study # four wrongful death action brought by errors of a 66 year old substitute teacher. I'm going to tell you this this. This verdict in this case is enormous. This was a As of March 8 2010 Deceit Impatient Went to defendant physician for a sore on the left heel that would not heal had been seen 10 days earlier at a after hours clinic defendant physicians saw the patient in the immediate period of time afterwards two times diagnosed the condition as cellulitis and prescribed antibiotics over the summer. The seating, I was careful to bandage the the hell and use antibiotic ointments, etcetera but did not return to defendant physician as the plaintiff's claim. The physician gave no reason to do so. eight months after the initial office visit the hell was painful and doubled in size decedent, referred defendant physician by defendant physician to a wound care clinic. Now here even though there was an activity to refer to a specialist. Uh potentially they'll argue and they did argue that it was an improper referral defendant. Physicians all defeated six more times over the next six weeks then referred to a dermatology department. There was no effort to expedite that appointment. In the interim, the decedent returned in late november with a bleeding wound. Defendant physician advised nothing to worry about. He also uh the patient also saw wound care physician's assistant who documented bleeding although the defendant physician had not done so when he saw the patient defended dermatology clinic visit occurred and the P. A. Performed a shave biopsy positive for melanoma. Dismal prognosis Decedent had been seen by defended dermatology clinic in 2008 for concerns regarding a facial reason. The decedent never received a full body evaluation. Now in this situation I suspect. And this is what you've seen with plaintiff's attorneys. If they can get an earlier negligent allegation, they're going to do so because in many of these melanoma cases, there are issues that plaintiff has in terms of whether or not earlier intervention would have made a difference in the outcome. The decedent died in July of 2012, 2 years and four months after the initial visit with defendant physician decedent's husband sued the dermatology clinic for failing to check the lower half of the city's body during the skin check plaintiff husband sued defendant physician arguing. Further testing should have been performed when there was a failure to heal. In other words, a failure to re examine the working diagnosis during discovery and we see this often in these cases and you need to keep this in mind. Plants attorneys are able to access information that otherwise in the past was not necessarily the case. That is because of the computer age and in this situation they were able to determine that there was never a review of the chart for the previous visits. Also, the allegation was that there was a failure to list the wound on the problem. List expert testimony for the plaintiffs to internal medicine. Doctors indicated defendant physician had an obligation to investigate why the wound had not healed. Also, a failure to give written instructions to return if the wound did not heal, plaintiff psychology expert testified the melanoma was present at the time of the earlier visit at the dermatology clinic in 2000 and eight when only the upper skin check had occurred. Now here they're doing this because in earlier negligent action will help them on the causation issues. The failure to undertake uh the appropriate evaluation had a full body exam taken place. They alleged that it would been caught earlier as set forth here. Uh And in fact it would have been caught when defended physicians saw the patient from January to June, approximately 1.5 years later, defendant argued that the care was reasonable. This was a rare aggressive form of melanoma by doing so. They're basically arguing that because it was aggressive physical examination would not have yielded in a suspicion of this lesion, defendant pathologist argued, melanoma was particularly aggressive And likely stage three at the time first seen by defendant position. Now, oftentimes in these cases were placed in the position that we sometimes it looks like a tautology. We argue the standard care was met but that had it been met, it was already too late and we we finesse that in the course of these cases. But sometimes jurors can look at that and look at it as uh inconsistent approach defendants to internal medicine. Doctors claimed not necessary for defendant physician to review the prior treatment records nor necessary to list lesion on the problem missed defendants clinics expert claimed the P and the dermatology clinic Was not required to perform a full body examine. The lesion was not detectable at the time decedent died after 1.5 years of debility, debilitating and expensive treatment. The result, this is a huge verdict. Eight million $500,000 noneconomic. The medical expenses and past lost earnings future, lost earnings. That was a total award of $9.334 million. Next case, Personal injury action brought by a student in the 20s had a mole on the right to thigh. The change in appearance. This was the critical point Plane of thought she might have hit her mole at some .2 days earlier but wasn't sure june returned mole had been bleeding severely biopsy obtained, plaintiff sued the dermatologist and the medical group plaintiffs dermatologist and pathology experts. Opine standard required immediate excision biopsy of this suspicious lesion and the defendants were negligent and not ordering such at the first visit. They also allege that the defendant, dermatologist should have discounted or ignored the unreliable history of a possible trauma. Defendants denied liability defended. Dermatologist testified That the plaintiff at the initial visit was instructed to wait 30 days and if the mold did not return to normal comeback for biopsy now there was a dispute on whether or not that instruction was actually given plaintiffs disputed that. So again, the importance of documentation is essential in these types of cases. Defendants, dermatology expert Alpine because the plaintiff thought she might have hit them all and cause traumatized cells that can resemble cancer cells and could lead to a misdiagnosis of the condition because of the traumatized cells. Plaintiff disputed defendant's testimony regarding instructions, Uh and defendants argued that the plaintiff was negligent and waiting until June of 2012 before returning to defend dermatologist office. Here's some of that evidence or discovery that I mentioned earlier, defendant was able to determine that the plaintiff had gone on the internet and looked up words like bleeding and mole as a possible connection to malignant melanoma. Defense argued that the plaintiff waited four months after the biopsy before undergoing the surgery and with a stage street malignant melanoma. The plaintiff underwent a wide excision of the tumor and had a sentinel node biopsy, one of the lymph nodes has to positive from Oregon to see all of which, out of all the lymph nodes and the lymph node area was removed, plaintiff underwent interferon treatment for a year. Side effects of thyroid as well as hair, left scar tissue, patient was cancer free at the time of the suit, claimed no lymph node surgery or interfere on treatments. If the biopsy was performed in august of 2011, plaintiff also claimed her life expectancy decreased defendants argued that the thickness and aggressiveness of the tumor plaintiff would have had the same outcome, no harm, no foul plaintiff sought A number of different uh elements of damages, but in this case finally, we have a defense verdict within 22 day minutes of jury deliberation. Uh ladies and gentlemen, I think you get a published analysis of these cases. I encourage you to look at uh the case is in the package including uh case number seven. in case # seven is a situation where the physician decided to create a fraud by creating records that were not in existence at the time that can expose you to punitive damages which are not insurable in the state of California and probably in most jurisdictions and I think we are at the end of our time right now. I want to thank you for the opportunity to address you. Thanks robert. Really appreciate it. It's always informative when I was practicing and running this meeting. Uh Mr Cosgrove always wanted me to let the audience know that if you are a dermatologist and you sign out your own cases that you are held to the standard of a dramatic pathologist and I always felt a bit awkward at that since I was a dramatic pathologist. But now that I'm retired, I'm going to tell you that Mr. Called Growth. Want me to tell you that if you are a dermatologist, signing out your own cases, you're held to the same standard as a dramatic pathologist. Thanks again bob. We appreciate it. You better. My pleasure.
