Jury Sides With Plaintiffs After Failed Cancer Diagnosis

A Bucks County jury has awarded $700,000 to a woman and her husband after they alleged doctors failed to timely diagnose her breast cancer and that one doctor, a gynecologist, altered her medical records to make it appear as though she had taken different steps while treating her former patient.

According to Paul A. Lauricella, who represented the woman and her husband, the verdict comes after years in which plaintiff, Mary Ellen Dolan has not had any recurrence of cancer or metastasis following successful chemotherapy and surgical resection of the remaining cancerous mass.  Instead, after a seven-day trial, the jury deliberated for eight hours before determining that it was the seven-month period in which Dolan’s prognosis worsened that warranted relief against Dr. Denise Ranucci, the gynecologist.

Lauricella said the jury turned on evidence that Ranucci altered Dolan’s medical records to indicate she had taken certain measures to refer Dolan to a cancer specialist when, in fact, she had not.  In an interview following the May 15 verdict, Lauricella pointed to the fact that a second defendant – radiologist Seyed Hashemi – walked.

Gary Samms, who represented Hashemi, said his client accurately read ultrasound and mammogram tests performed on the woman and that both films showed all the characteristics of a cyst.

The plaintiffs had challenged that theory, arguing that the borders of the mass in Dolan’s case were not smooth, as would be seen in a cyst.  But Samms said one of their experts conceded at trial that a cyst can have a slightly irregular border.

As for the allegedly altered records, Samms said:  “I don’t believe the doctor altered the records, but it’s possible that the jury’s belief of that could have increased the award.”

Lauricella told the Law Weekly that the plaintiffs planned to file for delay damages that would bring the number closer to $800,000.

The verdict came solely against Ranucci.

No settlement offers came before or during the trial.  Dolan’s husband, Timothy Dolan, filed a loss of consortium claim.

In an email, Lauricella said the jury only considered pain and suffering.

In the plaintiffs’ pretrial memo, Lauricella spelled out how the plaintiffs’ team identified that two handwritten notations in Ranucci’s file on Dolan in which she wrote that she referred Dolan to a surgeon were allegedly made after the fact.

The memo shows scanned-in excerpts from two January 2006 reports – one on a mammogram and the other on an ultrasound – in which Ranucci appeared to have written that she advised Dolan to follow up with a breast surgeon.

The problem, according to the memo, was this:  Ranuci had faxed those very same reports to the breast surgeon when she eventually referred her patient to see him.  The January 2006 annotations were conspicuously absent, the filing said, including a scan of an original report next to what the plaintiffs alleged was an altered one.

According to the pretrial memo, the belated annotations stood contrary to sworn deposition testimony from Ranucci.

The court filing also presents a timeline of Ranucci’s relevant visits with Dolan.

In December 2005, Dolan went to Ranucci with a lump in her breast.  Suspecting a cyst, Ranucci ordered a mammogram.  Two weeks later, Hashemi, the radiologist, interpreted the mammogram and ordered an ultrasound.  He issued two reports – one of the ultrasound in which he said the mass was “most likely” a cyst, according to the memo, and one of the mammogram in which he said the ultrasound had conclusively “proven” the mass was a cyst.

In January 2006, according to the pretrial memo, Ranucci told Dolan that the tests came back normal.  Dolan pressed her doctor as to whether the lump needed to be aspirated or biopsied by a surgeon.  But Ranucci told her that was unnecessary and that “no surgeon would even consider seeing her,” the memo said.

That same month, Dolan went to Ranucci for an annual gynecological exam, a visit unrelated to Dolan’s concerns about the lump in her breast.  She again asked about the mass and again Ranucci said she did not need to see a surgeon, the memo said.

Dolan saw her doctor on three more occasions before Ranucci referred her to a breast surgeon in a June 20 visit.  In July, about seven months after Dolan’s first visit to Ranucci, pathologists informed the surgeon that surgically debrided tissue had revealed a malignant tumor.

In an interview, Lauricella said the defense’s surgical oncology expert – Ned Z. Carp of Lankenau hospital in Ardmore, Pa. – cited cancer guidelines that corroborated with the plaintiffs’ theory of standard of care.

“[He] basically said what we’ve been saying all along,” Lauricella said.  “You’ve got to aspirate or biopsy these things.”

Samms, however, had a different recollection, saying Carp testified that aspiration and biopsy tests are only required when a mass is symptomatic.

In Ranucci’s pretrial memorandum, the defense emphasized the fact that Dolan has been cancer free since 2007.

But that was just part of the lawsuit.  Lauricella said the case demonstrated the impact that allegations of medical records alteration can have in a case that would have otherwise been a “tough sell” in Philadelphia’s surrounding counties.

During Ranucci’s deposition, she testified that she “merged” both the mammogram and ultrasound reports into one document, a possible explanation for the alleged alterations.  The defense said in its pretrial memo such mergers were common practice for Ranucci, who worked out of two offices, and did not “represent improper or inappropriate action.”

According to Dolan’s pretrial memo, there were other “significant irregularities” in the medical records in addition to the alleged referral additions.

According to the memo, Ranucci made annotations in December 2005 referring to an ultrasound that she never ordered.

As Lauricella put it in the memo, Ranucci predicted the ultrasound with “incredible clairvoyant prescience.”

“Dr. Ranucci either predicted the ultrasound in December 2005, or simply stumbled upon the reports of the mammogram and the ultrasound while she was rewriting the chart, and incorrectly assumed that she had ordered both studies,” the memo said.

Efforts to reach Benjamin A. Post, who represented Ranucci, were unsuccessful.

Paul Lauricella

McLaughlin & Lauricella, P.A.

855-633-6251

 

REPRINT: Pennsylvania Law Weekly, June 5, 2012.

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