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Non-Cancerous Lung Tissue Removed; Res Ipsa Loquitur


A patient, who did not smoke, but lived with two smokers, and worked in coal mines for 30 years, presented with dyspnea, shortness of breath, and wheezing. Imaging revealed a mass in the patient’s lung.

 

A surgeon performed on the patient a wedge resection and biopsy. A pathologist provided intraoperative analysis of frozen section pathology slides of the specimen (“frozen slides”). The pathologist communicated to the surgeon that the frozen slides were cancerous or suggestive of cancer. The surgeon performed a lobectomy, the removal of a portion of the patient’s lower left lung.

 

The permanent section slides (“permanent slides”), which could not be read until the following day, revealed that the biopsy specimen was benign.

 

The patient sued the surgeon and pathologist for medical malpractice. The complaint alleged that the unnecessary lobectomy reduced the patient’s lung capacity by approximately twenty percent.

 

In support of the claim, the patient submitted the affidavit of an expert in pathology. The expert in pathology opined that the pathologist violated the standard of care in diagnosing the frozen slides. Specifically, the expert opined that the pathologist should have deferred diagnosis of the unusual tumor until the pathologist could review the permanent section slides. During a deposition, the expert pathologist testified that the pathologist would not have deviated from the standard of care had the pathologist offered a leaning (i.e., told the surgeon that the slides were suggestive of cancer) along with the deferred diagnosis. The expert pathologist conceded that the frozen slides could not have been called normal/benign during the intraoperative analysis and that they had characteristics that were in fact suggestive of cancer.

 

During a deposition, the surgeon testified that, given the preoperative imaging studies and patient history, the surgeon had decided prior to the start of the procedure to perform the lobectomy unless the diagnosis of the frozen section during the intraoperative analysis was clearly not cancerous.

 

The surgeon and pathologist filed motions for summary judgment. The Vanderburgh Circuit Court denied summary judgment.

 

The Court of Appeals of Indiana reversed. The court held that (1) the doctrine of res ipsa loquitur did not apply to the patient’s claims against the surgeon, and (2) the evidence viewed in a light most favorable to the patient established a lack of causation with regard to the claims against the pathologist.

 

The doctrine of res ipsa loquitur did not apply to the patient’s claims against the surgeon because this was not the type of case in which the applicable standard of care was within the realm of the common knowledge of a layperson. The court noted that the surgeon’s decision to perform the lobectomy was informed by the surgeon’s review of the patient’s medical and social history, the pathologist’s intraoperative pathology consultation, and the advantage of doing a single surgery rather than waiting for the permanent slides and possibly having to put the patient through the risks of a second thoracic surgery. Additionally, the court noted that the surgeon testified that regardless of whether the pathologist specifically reported that the frozen slides revealed cancer or that they were suggestive of cancer, the surgeon would have proceeded with the lobectomy under the circumstances presented. The court held that an evaluation of the surgeon’s conduct and the medical reasons for proceeding with the lobectomy in light of the patient’s entire clinical picture clearly required expert testimony. The patient did not provide expert testimony from a surgeon. Accordingly, the trial court erred when it denied the surgeon’s motion for summary judgment.

 

The evidence established a lack of causation with regard to the claims against the pathologist because the surgeon testified that the surgeon would have performed the lobectomy had the pathologist given any intraoperative diagnosis other than a definitive diagnosis that the lesion was benign. The patient’s pathology expert conceded that an intraoperative diagnosis that the cells were clearly not cancerous was not appropriate in this case because the frozen slides were a “tough call” and demonstrated characteristics that were suggestive of cancer. The court reasoned that, given that the slides were difficult to interpret and were suggestive of cancer, along with the patient’s entire clinical picture and patient history, the surgeon’s deposition testimony revealed that the surgeon would have proceeded with the lobectomy regardless of whether the pathologist deferred with a lean, indicated that the slides were suggestive of cancer, or diagnosed the specimen as cancerous. The court found that the patient had designated no contrary evidence that the surgeon, the ultimate decisionmaker regarding the lobectomy, would have changed course had the pathologist provided an intraoperative diagnosis of inconclusive and deferred for analysis of the permanent slides the next day. The court concluded that the designated evidence presented no question of fact regarding causation. Consequently, the trial court erred when it denied the pathologist’s motion for summary judgment.

 

The Court of Appeals of Indiana reversed the trial court’s denial of the surgeon’s and pathologist’s motions for summary judgment.

 

See: St. Mary’s Ohio Valley Heart Care, LLC v. Smith, 2018 WL 4868712 (Ind.App., October 9, 2018) (not designated for publication).

 

See also Medical Risk Law Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

 

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