Legal Aspects Of Health Care Administration 11th Edition by George Pozgar

Exercise 14

Facts
On January 9, 1992, Dr. Massey, a specialist in otolaryngology, measured a node in Mr. Powell's neck as 4 cm by 3 cm and ordered a CT scan. The CT scan conducted on January 11, 1992, indicated that the size of the left cervical mass was a result of an enlarged internal jugular node, which most likely was an abscess. On January 14, 1992, Massey aspirated fluid from the enlarged node. Although he discussed the CT scan with Powell and ordered cultures, he did not suggest a need for an examination to rule out cancer. Because Powell told Massey that he had experienced some exposure to cats, Massey referred Powell to Dr. Margileth, an infectious disease specialist experienced in the diagnosis and treatment of cat scratch disease. On January 27, 1992, Margileth performed tests for tuberculosis and cat scratch disease and measured the swelling in the left anterior-superior neck. He advised Powell that he had cat scratch disease and prescribed antibiotics. The results of the CT scan had been furnished to Margileth.
On February 18, 1992, Massey palpitated the nodule in Powell's neck, which measured 4 cm × 2.8 cm. Massey performed another examination on April 7, 1992, during the course of which he suggested the possibility of cancer.
In June 1992, Powell discovered a second lump in his neck and, in July, went for help to the VA Medical Center Hospital. A needle aspiration of the two lumps resulted in the diagnosis of cancer, representing a progression from stage III in January 1992 when the CT scan was conducted, to stage IV in July 1992. Powell underwent radiation therapy, surgery, and other treatment but died of cancer 3 years later at the age of 40.
The trial court held that there was not sufficient evidence that would allow a jury of reasonable persons to conclude that the defendant's breach of the standard of care (1) proximately caused Powell's injuries; (2) adversely altered the required method of treatment; or (3) adversely affected Powell's rate of survival.
Issue
Did the trial court err in granting the defendant's motion to strike the plaintiff's evidence?
Holding
The appeals court ruled that there was adequate evidence that would allow a jury of reasonable persons to conclude that the defendant's breach of the standard of care proximately caused the decedent's injuries. The case was remanded for a new trial.
Reason
Dr. Holder, one of the plaintiff's expert witnesses, testified that the defendant's misdiagnosis of cat scratch disease caused his patient delay in diagnosis and treatment of his cancer from January until July and that if Powell had been informed of the possibility of cancer in January and options were offered in terms of biopsy for fine-needle aspirations, then Powell would have had a diagnosis of cancer probably in the first week of February. When asked whether the delay in diagnosis and treatment was a direct and proximate cause of the injuries to Powell, Holder answered, "Yes, it was."
Dr. Ali, who had treated Powell, said he would have had approximately a 75% chance of surviving 5 years compared with the 15% to 20% chance he had in July 1992. Dr. Tercilla, a professor at the Medical College of Virginia, testified that, in his opinion, if Powell had been treated in January as opposed to July, he would have had a higher likelihood of being in control of this disease than he had when he presented at the VA hospital. Dr. Kipreos, a pathologist at the VA center, stated that in her opinion, if Margileth had requested a fine-needle aspiration in January 1992, rather than misdiagnosing Powell with cat scratch disease, Powell's cancer would have been diagnosed at that time.
Discuss the role of expert testimony in this case.