gavel.gif (3462 bytes) Medical Malpractice

Risk of recurrence evidence 
admissible in malpractice case

The Pennsylvania Supreme Court has ruled that evidence showing an increased risk of recurrence of cancer is admissible in establishing damages in a malpractice case against a physician. The decision affirmed the state Superior Court�s decision in the case of Zieber v. Bogert.

"The Zieber decision has clarified the law in causes of action arising from a single act of negligence, as opposed to the toxic exposure arena," said PaTLA Assistant Treasurer Michael J. Foley, of Foley, McLane, Foley, McDonald & MacGregor. Foley wrote the Amicus Curiae brief. He said that the decision is a huge victory for plaintiffs because the Supreme Court clarified existing law involving increased risk of recurrence.

According to the Supreme Court opinion, Robert Zieber began experiencing abdominal pain in June of 1992. He went to the emergency room at Roxborough Memorial Hospital and was treated by Dr. Childs. Childs felt a mass in Zieber�s stomach and ordered a blood test. He then contacted Zieber�s regular doctor, Dr. Arthur Bogert, and suggested he order a C-T scan with IV contrast, a barium enema, and an upper G.I. study.

When Bogert examined Zieber, he diagnosed him with irritable bowel syndrome and ordered the barium enema and upper G.I., but not the C-T scan. Bogert recommended that Zieber make some diet changes and return if the pain came back. In March of 1993, Zieber�s pain came back. Due to a change in health plans, Zieber went to a different primary care physician, who felt the mass in his abdomen. The doctor ordered a C-T scan, which revealed two masses. The larger mass had obstructed Zieber�s bowel, requiring surgery. Zieber had the surgery and after much therapy, the cancer went into remission.

Zieber and his wife then filed suit against Bogert and the hospital. They sought damages from the late diagnosis of the cancer. At trial, evidence was presented about the likelihood of a recurrence. The trial court jury in the trial awarded Zieber $800,000 and his wife $200,000 on her loss of consortium claim. The Superior Court, on appeal, remanded for a new trial, saying that the trial court failed to instruct the jury on comparative negligence after Bogert testified Zieber had refused to take a C-T scan. However, the court held that the evidence on risk of recurrence was allowed as part of the jury�s assessment of damages.

The defense argued to the state Supreme Court that this decision was not consistent with the decision in Simmons, where increased risk and fear of cancer were not admissible to the jury. The Pennsylvania Supreme Court explained that Simmons did not alter the established rule of law that "a doctor properly may be allowed to explain the possible future effects of an injury and with less definitiveness than is required of opinion testimony on causation." In Simmons, the issue for review was whether asymptomatic pleural thickening, i.e., a condition unaccompanied by disabling consequences or physical impairment, is a compensable injury. In reviewing that argument, the court stated, "Unlike the instant case, none of the plaintiffs had contracted mesothelioma or cancer at the time the suits were filed. Instead, they were all diagnosed with asbestos-related pleural thickening, which is the formation of calcified tissue on the membranes surrounding the lungs."

"We found that it was not a compensable injury giving rise to a cause of action. Our decision was based on the fact that there was no physical injury that necessitated the awarding of damages."

Bogert claimed that, based on the Simmons decision, risk of recurrence should not be considered in the verdict. The court rejected one extension of Simmons as a medical malpractice case involving delay and diagnosis of cancer because, "the decision was based on the lack of physical injury and the ability of the plaintiffs, pursuant to the two-disease rule, to file a second action if and when the symptoms arise. Neither of these conditions exist in the instant case."

"In summary, we hold that evidence of the increased risk and/or fear of recurrence of cancer is admissible for the purpose of establishing damages in a medical malpractice case alleging a physician�s negligence in failing to properly diagnose the disease. Appellants� concerns regarding the speculative nature of such challenges go to the weight, rather than the admissibility of the evidence. Accordingly, the order of the Superior Court is affirmed."

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