Earlier this month, a federal appellate court issued a written opinion in a personal injury case involving a missed cancer diagnosis filed against the Veterans Administration (VA). Ultimately, the court concluded that, while the VA was negligent in failing to diagnose and treat the cancer, that failure was not the cause of the patient’s death. This case is important for Washington, D.C. medical malpractice plaintiffs because it illustrates the strict requirement of causation and the level of certainty an expert witness must possess when testifying.
The plaintiff was the surviving spouse of a patient who was treated by the VA for various medical issues. Pertinent to this case was the patient’s diagnosis of cirrhosis of the liver. In 2011, a routine test showed the patient presented increased liver function. The attending nurse ordered a CT scan, and the VA doctor interpreting the scan noted that the patient’s cirrhosis was stable but did not note anything else.
In 2013, the plaintiff was admitted to the emergency room with various symptoms, including painful urination, incontinence, confusion, and slurred speech. Another CT scan was ordered and found a cancerous mass in the patient’s liver. The CT scan results were then compared to the earlier CT scan, and it was clear that the mass was present in the earlier scan as well. Since then, the size of the mass had doubled.
The patient was too weak to receive medical treatment and was placed on palliative care until he died a short time later. The patient’s wife filed this medical malpractice lawsuit against the VA.
At trial, the plaintiff presented testimony from several experts. The sum of this testimony was that, if the cancer had been diagnosed by the VA in 2011, the patient may have been able to obtain a liver transplant. However, the expert admitted that the patient would not likely qualify for a transplant due to the size of the mass. Another expert testified that, had the patient undergone a liver transplant, there was a 30% chance that it would have cured his disease. The same expert also explained that, even if a transplant was not possible, there may have been other treatment options that could have potentially extended the patient’s life. However, the expert relied on general data of the “median patient” and refused to quantify the difference such treatment would have made in the patient’s specific situation.
On a defense motion for summary judgment, the court dismissed the plaintiff’s case based on a failure to establish causation. The court explained that, while the VA was negligent in missing the cancer diagnosis in 2011, the plaintiff failed to prove that the missed diagnosis resulted in the patient’s death.
The court explained that expert testimony must be based on a “reasonable degree of medical certainty.” Here, the court held, the plaintiff’s experts testified in general terms and could not quantify any actual difference in the patient’s lifespan had the cancer been detected by the VA in 2011. First, the court noted that there was no guarantee that the patient would have received a transplant. Second, if he did receive a transplant, there was only a 30% chance of success. The court explained that a 30% chance of success is insufficient to establish causation, which requires a chance of 50% or greater.
Have You Been a Victim of Medical Malpractice?
If you or a loved one has recently been a victim of negligent medical care in the Washington, D.C. area, you may be entitled to monetary compensation through a Washington, D.C. medical malpractice lawsuit. These cases are exceedingly complex and often require the testimony of several expert witnesses to establish the necessary elements of a claim. At Lebowitz & Mzhen, LLC, we have decades of experience handling Maryland, Virginia, and Washington, D.C. medical malpractice cases, and we know what it takes to succeed on our clients’ behalf. Call 410-654-3600 to schedule a free consultation today.
More Blog Posts:
The Importance of a Thorough Investigation in Washington, D.C. Car Accident Cases, Washington DC Injury Lawyer Blog, July 11, 2017
Court Discusses Expert Witness Testimony in Recent Car Accident Case, Washington DC Injury Lawyer Blog, August 2, 2017