Missed Cancer Diagnosis Garners $3.75 Million Award
This article originally appeared in the Legal Intelligencer on April 2, 2002.
A 47-year-old man whose melanoma went undetected on a skin biopsy sent to a Maryland group of pathologists will receive $3.75 million in damages for the error.
A Philadelphia jury awarded plaintiff Roy Hunt $5.176 million on Thursday, but the $3.75 million figure was fixed in a high-low agreement in which minimum liability for the pathology group was set at $750,000.
Dr. F. Philip Robin of Kolsby Gordon Robin Shore & Bezar, who represented Hunt in Hunt v. Pelczar, said the parties had reached “the correct result.” Associate Christopher J. Culleton assisted Robin.
“People talk about runaway jury verdicts,” Robin said. “Considering what the plaintiff went through, there was a logical basis for the amount [Hunt] received.”
The jury had awarded Hunt $2 million for non-economic damages, $1 million for loss of consortium, and about $2.1 million for economic and wage-loss damages. Hunt holds a college degree and worked as a programmer for machinist equipment before his illness. Robin said Hunt had not been able to work for two years.
In 1995, Hunt’s family doctor wanted a mole on Hunt’s back to be biopsied, Robin said. The biopsy was sent to SmithKline Beecham labs, which then sent it to a subcontracted group of pathologists in Maryland, Hicken Cranley & Taylor, or HCT.
Pathologist Michael Pelczar, who belonged to the HCT group and examined Hunt’s slide, admitted he breached the standard of care by failing to detect the cancerous cells on the slide, according to his attorney, Chandler Hosmer of Goldfein & Hosmer.
According to Robin, Hunt’s family doctor was told the biopsy was benign, with “no suspicious features.” Hunt was 41 years old at the time.
Four years later, in 1999, Hunt felt a lump under his arm while he was in the shower, Robin said. Hunt went to a dermatologist to have the lump biopsied, and the sample revealed malignant melanoma, which was present in the lymph nodes and had metastasized to Hunt’s brain and other parts of his body.
Hunt sued SmithKline, HCT and Pelczar that year. SmithKline, which was represented by Gerald Gaetano of Whitney & Bogris in Baltimore, was dismissed from the case on motion. Robin said he didn’t mind SmithKline’s exit from the case since HCT had adequate coverage under its insurance policy.
The trial, before Philadelphia Common Pleas Court Judge Mary D. Colins, lasted five days.
A jury of 12 deliberated for about three hours on all issues and spent 45 minutes deliberating damages, according to attorneys in the case.
Hosmer, who represented both Pelczar and HCT, said that when he spoke with jurors after the trial was over, he discovered that he had “had a greater hope [of winning] than was maybe justified.”
Once the jurors heard that Pelczar admitted liability in misreading the slide in 1995, “they heard nothing else,” even though the case was being tried on causation, not the duty of care.
No juror was educated beyond the 12th grade, Hosmer said, because those potential jurors had been struck from the pool by Hunt.
At trial, Hosmer argued that since a second biopsy taken from the identical spot of Hunt’s original mole in 1999 showed no cancerous cells, nor a “regression” or residual scar, Hunt must have either experienced metastases before December 1995, or the cancer must have come from another site.
And Hosmer said that even if Pelczar had correctly read the first slide, it would not have changed the outcome for Hunt, who he said had a “terrible prognosis.”
Robin said that Hunt’s current chances for three-year survival are zero.
But a plaintiff’s expert, dermapathologist Philip Shapiro of Connecticut and formerly at Yale University, testified that he saw a scar, or “fingerprint,” on Hunt’s second biopsy, which showed that cancer had once existed there.
However, Hosmer said that although that was what Shapiro testified to at trial, it did not appear in Shapiro’s report. Hosmer said that he heavily cross-examined Shapiro on the point but that the questioning apparently did not sway the jury.
Also testifying for Hunt was Dr. Darrel Riegel of New York University, formerly of the Massachusetts Institute of Technology, and a past president of the American Academy of Dermatology.
According to Robin, the experts’ credentials on both sides were “unbelievable … a who’s who of dermatologists.” Adding to the drama was the fact that the defense’s expert, dermapathologist Bernard Ackerman, had taught both of the plaintiff’s experts.
But Robin said the “defining moment” of the trial came when Ackerman testified, on cross-examination, that cancer was visible “at the margin” of the second Hunt slide. When cancer is visible at the margin, it is “a red flag to dermatologists that cancer has been left behind,” Robin said.
Robin said the $3.75 million Hunt will receive is close to the initial demand Hunt made of the defendants. Initially, the case presented a conflict of laws problem since HCT is based in Maryland, Hunt in New Jersey, and some events occurred in Pennsylvania, Robin said.
According to Robin, Colins opted to wait to resolve the choice of law issue until after trial, but that became moot when the parties reached a high-low agreement.
The possibility of Maryland law being applied was problematic, Robin said, because under that state’s law, Hunt’s damages would have been substantially capped. He said Hunt got the best of both worlds because the high-low agreement included a provision that there would be no molding of the verdict to Maryland law.
Robin said he was motivated to seek a high-low agreement so that Hunt would get his money before his death.
“It’s unlikely he would have survived the two years an appeal would take,” Robin said. These days, he said, Hunt is only awake for an hour or two each day, to take his pain medications and to eat; weakened by cancer, he sleeps the rest of the time. Robin said Hunt had surprised doctors by surviving as long as he has.