Facts

In early June 2000, the plaintiff, 28, underwent a punch biopsy of a left cheek lesion by a non-party dermatologist. The biopsy was read by defendant dermatopathologist as showing a dysplastic nevus with severe dysplasia. Against the advice of a non-party dermatologist, the plaintiff consulted with a physician's assistant at defendant medical group. The PA offered him the options of excision of the lesion, cryotherapy (i.e. freezing) or hyfrecation (i.e. burning). According to the plaintiff, the PA represented that all were equally efficacious. The plaintiff opted for cryotherapy, and underwent two such treatments. Whether or not arrangements were made for follow-up was disputed.

In September 2003, the plaintiff noticed a cyst-like structure in his left cheek. He consulted with a different primary care physician. A biopsy was done, which led to the diagnosis of a melanoma that was 2.5 cm in thickness on the Breslow scale.

The plaintiff then underwent a wide excision of the lesion followed by Interferon therapy. To date, there has been no evidence of local or systemic recurrence.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the biopsy in June 2000 in fact showed a melanoma .34 mm thick, which was misdiagnosed as a dysplastic nevus with severe dysplasia. The plaintiff further contended that even if the defendant dermatopathologist was correct in assessing this as a dysplastic nevus, accepted standards of care required a wide excision by defendant medical group. Had this been done, the plaintiff would have had upwards of an 80 percent chance of cure. Because of the delay of 39 months, the lesion advanced in stage and thickness such that his long-term survival probability is on the order of 25 percent.

DEFENDANT'S CONTENTIONS:
Defendant dermatopathologist argued that whether this was labeled a dysplastic nevus with severe dysplasia or melanoma, the standard of care required that defendant medical group perform a wide excision and obtain at least 3 mm of clear margins.

Defendant medical group argued that it was reasonable to offer plaintiff options of excision, freezing or burning, if in fact this was a non-malignant dysplastic nevus.

The defendants collectively argued that since the plaintiff is now four years out from diagnosis, his likelihood of cure is on the order of 75-80 percent.

Specials in Evidence

Past loss of earnings were disputed. The plaintiff worked as a truck driver and then worked as a technician for Terminix. Future loss of earnings in the event of recurrence, the treatment for which would be palliative only, were quantified at approximately $800,000.

Injuries

The plaintiff underwent a wide excision, lymphatic mapping, radiation and Interferon treatment. Had the diagnosis been made in 2000, treatment would have consisted of wide excision only.

Result

The case settled following mediation with Jay Horton at Judicate West in the amount of $725,000. The settlement was on behalf of the medical group only, and included a waiver of any wrongful death case. The dermatopathologist was dismissed for a waiver of costs but without a waiver in any future wrongful death case.