By Kathleen Harth, Assistant Vice President of Claims and Elizabeth Ollinick, Esq.
Medical History and Treatment
A 65-year-old female patient had been under the care of several physicians, including a gastroenterologist and general surgeon, since 2009. She had a history of various medical conditions, including breast cancer, gastroesophageal reflux disease (GERD), hyperglycemia, colon polyps, irritable bowel syndrome and Schatzki’s ring (tissue that forms inside the esophagus). Among the prior surgeries she had undergone were cholecystectomy, lysis of adhesions, hysterectomy, lumpectomy and a resection of the small bowel due to an obstruction.
For several years, the patient complained of left-sided abdominal pain and underwent evaluations by a gastroenterologist that included endoscopies, ultrasounds and imaging studies, with no cause suggested for her symptoms.
In 2016, the patient underwent a CT scan of the abdomen and pelvis without contrast. The results were interpreted by a MLMIC-insured radiologist, who found no significant findings. The patient continued to endure worsening pain with abdominal distention, and, in 2019, she underwent an abdominal ultrasound that revealed a large mass in the hemi-abdomen. This was later confirmed by MRI as a large fat-containing mass anterior to the left kidney and crossing the midline that was suspicious of retroperitoneal liposarcoma. Retrospective examination of prior films from 2013 and 2016 revealed that the mass had tripled in size.
The patient was referred to a well-known cancer institute, where she underwent a wide resection of a left retroperitoneal well-differentiated liposarcoma with pancreatectomy, splenectomy and resection of portions of the left mesocolon and a portion of the omentum. The patient tolerated the procedure well, and no metastases were found. In addition, subsequent chemotherapy and radiation were not recommended.
The patient has continued to be followed closely with no recurrence to date, though this is a possibility in the future. In addition, she is at risk for infection due to the removal of her spleen. Finally, the patient developed diabetes, likely due to the partial pancreatic resection.
The Lawsuit
The patient brought a lawsuit naming multiple parties that included the MLMIC-insured radiologist as well as his radiology group. The plaintiff claimed that the radiologist was negligent in failing to note a suspicious mass, with the resultant cancer diagnosis not made until 3.5 years later, by which time the lesion had tripled in size. As a result, the patient claimed pain and suffering, loss of enjoyment of life, the need for more extensive surgery and the possibility of impending recurrence.
Expert Reviews
The defense counsel obtained an Arons authorization, which allowed them to discuss this matter with the plaintiff’s surgeon, who felt that while the patient would still have required wide resection had the tumor been diagnosed in 2016, there may have been a chance to save the spleen and pancreas had the surgery been performed at that time.
A review was undertaken by an expert in radiology, who concluded that the standard of care was not met by the radiologist, as he clearly missed this tumor in the earlier study. In retrospect, the 2016 films had demonstrated a large retroperitoneal mass of fat density, displacing the spleen and pancreatic tail, as well as the bowel. Though smaller, it was visible on CT scans as far back as 2013. The later sonograms and MRI performed at the time of diagnosis showed significant growth of the mass since 2016. Although the fatty content makes these tumors difficult to identify, the 2016 study showed more fat on the left side of the abdomen in contrast to the right, which should have been an indication that a tumor could be present.
In addition, a review was obtained by an expert in oncology, who confirmed that the tumor had no differentiation, which provided the plaintiff with a better prognosis. He opined that retroperitoneal liposarcoma is a rare malignancy that is usually asymptomatic until it becomes large and compresses the surrounding organs. It is generally misdiagnosed due to the lack of symptoms. However, in this case, the patient had experienced symptoms for several years, with the delay caused by the failure to properly interpret the films in 2016. In this instance, the tumor had no dedifferentiation, which increased the patient’s chance of a good prognosis. The oncology expert opined that, due to the misinterpretation of the films by our insured radiologist, the patient required more extensive surgery and, thus, the standard of care was not met.
Conclusion
Based on expert opinion, a decision was made to settle this matter, and the insured provided consent to settle.
The plaintiff’s counsel made a demand of $1,400,000. Negotiations ensued, and the case ultimately settled for $690,000 on behalf of the radiologist. Stipulations of discontinuance were provided for the other named insureds, and this matter was then concluded.
A Legal and Risk Management Analysis
Lavern’s Law
When looking at medical professional liability (MPL) claims involving a delayed diagnosis of cancer, it is important to understand the effect of Lavern’s Law, which extends the statute of limitations, i.e., the maximum time limit for cancer patients who receive a misdiagnosis to bring a lawsuit. In general, the statute of limitations to file an MPL lawsuit in New York is 2.5 years from either the date of the alleged malpractice or the last date of continuous treatment for the injury.
Lavern’s Law extends the statute of limitations and starts the clock later. Under Lavern’s Law, the time limit for MPL claims based on the misdiagnosis of cancer is 7 years from the date of misdiagnosis or 2.5 years from either the last date of continuous treatment or the date a patient knew or should have known that the misdiagnosis caused health complications.
In this case, the plaintiff claimed that the cancer should have been detected 3.5 years before the eventual diagnosis. This period is 1 year beyond the standard 2.5-year statute of limitations for MPL claims. Prior to Lavern’s Law, this case would have been dismissed for failure to file within the statute of limitations. Applying Lavern’s Law, the case was timely because it was filed within 7 years of the misdiagnosis and within 2.5 years of the discovery of the misdiagnosis.
MLMIC policyholders can reach our healthcare attorneys for questions regarding Lavern’s Law or any other healthcare law inquiries by calling (877) 426-9555 from Monday-Friday, 8 am-6 pm, or anyone by email here.
Our 24/7 hotline is also available for urgent matters after hours at (844) 667-5291 or by emailing hotline@tmglawny.com.
If you are not already a MLMIC insured, learn more about us here.
This document is for general purposes only and should not be construed as medical or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical or professional obligations, the applicable state or federal laws or other professional questions.
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