Marion Schlake v. Reference Pathology Laboratory, Inc.
Published: Oct. 24, 1998 | Result Date: May 1, 1998 | Filing Date: Jan. 1, 1900 |Case number: 703877 Verdict – $0
Judge
Court
San Diego Superior
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
Melvin Schiffman
(medical)
Edwin Haas
(technical)
Defendant
Meredith Peake
(medical)
Cary P. Mack
(technical)
Leland Housman
(medical)
Facts
In March 1994, the decedent, an 80-year-old retired man who had a past medical history significant for smoking, claudication, peripheral vascular disease and hypertension, suffered escalating ischemic attacks which were treated by a carotid endarterectomy. In the pre-surgical work-up, a suspected 3 centimeter mass was located to the decedent's left upper lungs. It was suspicious for neoplasm. Because of the decedent's age, the doctor believed that the mass most likely represented a malignancy. A fine needle aspiration biopsy of the mass was then performed. However, because of all small amounts of tissue obtained from the biopsy, it could not be read as benign or malignant. The decedent suffered a pneumothorax as a complication of the lung biopsy, which caused him to suffer pain and an extended hospital stay. Over the next eight months, serial X-rays showed the suspected left lung mass to be stable. During this time, the doctor repeatedly urged the decedent to have a repeat biopsy of the suspected mass since the only way to cure him if he had cancer was to remove the mass before it metastasized. However, because of the decedent's painful pneumothorax, the decedent refused to undergo a second biopsy. In January 1995, a repeat chest X-ray showed a widening of the right mediastinal area consistent with enlarged lymph nodes. Decedent's physician was concerned that the lung mass was malignant and spreading. However, the decedent again refused to undergo another lung biopsy. In May 1995, a chest X-ray showed that the decedent's suspected left lung mass had increased in size. The doctor felt that the decedent had a slowly growing lung cancer. He strongly urged the decedent to undergo another biopsy to determine whether the mass was malignant, however, the decedent again refused. In August 1995, another chest X-ray was performed, and the doctor again noted increased size of the suspected of the left upper lung mass. He strongly recommended that the decedent undergo a repeat lung biopsy for what he believed was a slowly growing malignant tumor. Once again, the decedent refused to have a biopsy. By the end of August 1995, the decedent discussed his growing lung mass with another physician, Dr. Gillespie. Gillespie also urged the decedent to undergo the lung biopsy in order to diagnose the mass. He advised him that he was at no jeopardy with respect to his heart condition if he underwent the biopsy. The decedent advised Gillespie that he did not want to undergo the biopsy because of the potential for another painful complication. The decedent's son, concerned about the growing lung mass, finally convinced the decedent to undergo a second fine needle aspiration biopsy of the lung mass. The second biopsy was performed on Sept. 15. Co-defendant pathologist first reviewed the biopsy material. Based upon his wet reading of the slide, he felt there was enough tissue to make a cell block and diagnosis. He did not detect any squamous cell carcinoma on the initial smears. Plaintiff claimed it is not possible to detect cancer by a visual observation of the smear. The tissue from the lung biopsy aspiration was then sent to defendant Reference Pathology Laboratory Inc. for preparation of the tissue into a cell block and pathology slides. During the slide preparation process, a floater contaminant, a piece of squamous cell carcinoma from another specimen, was placed onto one of two pathology slides prepared by the defendant. The floater was so microscopically small that it was not visible to the naked eye of the histotechnologist who prepared the slide. The pathology slides were then returned to the pathologist for examination and diagnosis. Part of the training of a pathologist is to detect the presence of a floater if possible, and if the floater affects the ability of the pathologist to render a diagnosis of the tissue, then the pathologist is required to ask for a re-cut of the tissue block. *** (FOR CONTINUATION OF FACTS)
Settlement Discussions
The plaintiff made C.C.P. º998 settlement demand for $19,999. The defendant rejected the demand and made a C.C.P. º998 offer of a waiver of costs.
Specials in Evidence
$__________ $46,335 $_____________ $_____________
Injuries
The death of plaintiff's spouse, and loss of financial support.
Result
*** (CONTINUATION OF FACTS) The pathologist failed to recognize the floater and diagnosed decedent with squamous cell carcinoma. Based upon the diagnosis of squamous cell carcinoma, decedent's physician recommended that he undergo a lobectomy. On Oct. 18, 1995, the decedent underwent a left upper lobectomy. During the surgery, a second suspected lung mass was found which required an excission of the left lower lobe. The decedent then suffered a series of complications following the surgery. He eventually developed acute respiratory distress syndrome. His condition continued to deteriorate, and he died on Nov. 3. The plaintiff, the decedent's 76-year-old wife, brought this wrongful death action against the defendant based on a medical negligence theory of recovery.
Other Information
The verdict was reached approximately one year and seven months after the case was filed. The jury was hung on the standard of care issue of Reference Pathology Laboratory Inc. 8-4 in favor of the defense. The plaintiff settled with the co-defendants for $50,000.
Deliberation
1½ days
Poll
8-4
Length
seven days
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