Pennsylvania Appeals Court Upholds Verdict for Plaintiff Where Surgeon’s Use of Needle Biopsy Resulted in Failure to Diagnose Cancer 11 Months Earlier

A woman noticed two lumps in her breasts. A mammogram and ultrasound revealed two cysts. No follow up was recommended. She mentioned the lumps to her primary care physician, who referred her to a surgeon. The surgeon conducted blind, fine-needle aspiration biopsies of the lumps. Several weeks later the woman received a message from the surgeon’s office indicating that the biopsies were negative.


Subsequently she felt a new lump and noticed the two original lumps had grown. A mammogram revealed nothing suspicious. The primary care physician again referred the woman to the surgeon. The surgeon again conducted blind, fine-needle aspiration biopsies of the three lumps, the results of which were inconclusive. A month later the surgeon conducted an excisional biopsy under general anesthesia, which revealed an invasive ductal carcinoma that was four to five times larger than the original mass described, and staged as IIIA. A stage IIIA tumor is up to five centimeters in size with regional lymph node involvement.


The woman underwent a bilateral mastectomy followed by eight rounds of chemotherapy and then radiation on the right side five days per week for sixty-five treatments. She took oral medications to reduce the risk of recurrence. Reconstructive surgery was complicated by the fact that she did not have enough skin as a result of the chest wall radiation she had been required to undergo.


The woman sued the surgeon for medical malpractice alleging that he deviated from the standard of care in performing a fine-needle aspiration biopsy instead of a computed tomography (“CT”) guided core biopsy, on two lesions in her right breast at the first opportunity. She argued that the CT-guided core biopsy was a more advanced diagnostic technique, and that had the surgeon used it, she would not have suffered an eleven-month delay in the diagnosis of her breast cancer. She argued that her treatment was more extensive than would have been necessary had she been diagnosed earlier.


The surgeon moved for summary judgment arguing that the woman’s experts, a pathologist and an internist/oncologist/hematologist, were not qualified to provide expert testimony regarding the standard of care applicable to a board-certified surgeon because neither was a board-certified surgeon. Court of Common Pleas of Northampton County, Civil Division, denied the motion and the case went to trial.


The jury returned a verdict in favor of the woman in the amount of $400,000, consisting of $150,000 for past non-economic loss and $250,000 in future non-economic loss. The surgeon filed a motion for post-trial relief seeking judgment notwithstanding the verdict or, in the alternative, a new trial or a remittitur. The trial court denied the motion, assessed delay damages stipulated to be $43,418.09, and molded the verdict to $443,418.09.


The defendant appealed arguing that the trial court erred under the Medical Care Availability and Reduction of Error Act (“MCARE”), <st>40 P.S. § 1303.512</st>, by permitting a pathologist and oncologist to render expert testimony regarding the standard of care applicable to a surgeon, and in failing to grant a new trial or remittitur for what he viewed as an excessive verdict.


The Superior Court of Pennsylvania affirmed the trial court’s decision. The appellate court held that the trial court did not abuse its discretion when it permitted the pathologist and the oncologist/hematologist/internist to render expert testimony regarding the standard of care of a board certified surgeon. Subsection (e) of 40 P.S. § 1303.512 permits a trial court to waive the same specialty and board certification requirements for a standard of care expert if the court determines that the expert possesses sufficient training, experience, and knowledge to provide the testimony as a result of the expert’s full-time involvement in a related field of medicine. The court held that the relatedness of one field of medicine to another can only be assessed with regard to the specific care at issue which requires a supporting evidentiary record and questioning of the proffered expert during voir dire.


The court noted that the trial court reasoned that since the alleged malpractice did not involve criticism of the surgeon's surgical technique in performing the fine needle aspiration but in choosing a diagnostic method known for a high incidence of false negatives rather than other methods, pathology and oncology were related fields with regard to the specific care at issue. The court also noted that the trial court permitted the experts to testify as standard of care experts only after an extensive voir dire and the development of a supporting evidentiary record. Moreover, the defense used a pathologist and an oncologist as experts with regard to the selection of diagnostic methods.


Regarding the surgeon’s motion for a judgment notwithstanding the verdict, the court found that the jury, in the face of conflicting expert testimony, specifically concluded that the surgeon’s negligence was a factual cause of the woman's harm.


Regarding the surgeon’s motion for remitter, the court found that the $400,000 jury verdict did not shock the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.


See: Renna v. Schadt, 2013 WL 657655, 2013 PA Super 34 (Pa.Super., February 25, 2013) (not designated for publication).


See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis.


See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation