Med Mal Verdict 'Shocked the Conscience'

In a Philadelphia case in which a defendant doctor testified at trial that he believed there was a 20% chance that his patient's cancer had returned but that he did not do anything to confirm his suspicion until approximately 14 months later, the Superior Court ruled that a jury verdict for the defendant so 'shocked the conscience' as to merit a new trial.

A three-judge panel characterized the physician's inaction as 'negligent failure to aggressively treat his patient.' The panel also said the defendant's failure to order a biopsy after noting possibly cancerous changes to the plaintiff patient's right breast substantially increased the woman's risk of harm, and decreased her chances of remaining cancer-free for a 5-year period from perhaps 90% to zero.

Judges Stephen A. McEwen Jr., Mary Jane Bowes and Patrick R. Tamilia also concluded that now-U.S. District Judge Legrome D. Davis, who presided over the trial, had improperly charged the jury on a concept ' 'mere error in judgment' ' not supported by the evidence. 'The trial court instructed the jury that the
failure to order appropriate diagnostic testing would be negligence, but a 'mere error in judgment' in failing to order the appropriate test would not,' Tamilia wrote for the court panel. 'Under the instructions given, the jury was required to conclude it was at least permitted to choose error in judgment or negligence in failing to order appropriate diagnostic testing.'

The opinion indicates that because the defendant acknowledged that he thought cancer recurrence was a 20% possibility, his failure to conduct diagnostic testing was not simply an error in judgment.

Vallone v. Creech was before the Superior Court on appeal from trial Judge Bernard J. Goodheart's interlocutory order granting the plaintiff and her husband a new trial. According to the opinion, Davis, who was subsequently appointed to the U.S. District Court for the Eastern District of Pennsylvania, had presided over the trial before the matter was reassigned to Goodheart for post-trial proceedings.

Dr. Richard H. Creech first treated plaintiff Diane Vallone in March 1991 after a biopsy indicated the presence of malignant cancer in her right breast, Tamilia said. The plaintiff underwent a lumpectomy and remained under the defendant's care until 1993, when she went elsewhere for treatment due to her insurance coverage.

In August 1966, the opinion states, Vallone noticed significant changes in her breast, and scheduled an October appointment with Creech since that was the first date the physician had available. The judge said that during the October appointment, the woman told Creech about the changes in her breast, that it had begun to hurt, and that she was concerned about recurrence of the
cancer.

According to the opinion, the defendant ordered a bone scan, blood work and a mammogram. A week later, Vallone saw the defendant again, and stated that she was concerned about the changes in her breast. Tamilia said Creech told the plaintiff that the changes in her breast had resulted from the radiation therapy she underwent after the 1991 lumpectomy, and that she should visit him again in 3 months. But on Dec. 2, 1997, Vallone presented to Creech with a red rash on her right breast. (In his opinion, the judge remarks that no biopsy had been performed up to this point.) The plaintiff was diagnosed with a cancer recurrence during this visit, confirmed by a biopsy the following week, the opinion states. Vallone's breasts were subsequently removed, and surgery was followed by extensive chemotherapy.

Tamilia said that on appeal, the defendant argued that the jury heard expert testimony from both sides regarding the relevant standard of care, and that jurors concluded that he was not negligent in his treatment of the plaintiff. Additionally, Creech contended that the trial court wrongly substituted its own opinion for that of the jury when the court overturned the jury verdict.

The Superior Court reviewed testimony of two plaintiff's experts, both of whom told jurors that Creech deviated from the standard of care when he failed to perform a biopsy in August 1996. One expert, the opinion states, said that if a cancer patient presents with a dramatic change in breast appearance 5 years after completion of radiation, the treating physician must assume recurring cancer until a biopsy proves otherwise.

'While it is expected the plaintiff's expert witnesses would testify as such,' the opinion states, 'what especially shocked the conscience of the trial court, and this court as well, was the testimony offered by [the defendant] himself, wherein he admitted that upon his October 1996 examination of [the plaintiff], he believed there was a 20% chance the cancer had recurred, yet he did nothing to confirm that suspicion until approximately 14 months later. [The defendant] also testified that in October of 1996, when [the plaintiff presented with changes in the shape of her breast, he thought, 'What in the world is going on here? It could be a recurrence of her cancer; it could be due to the radiation therapy,'' the opinion states.

'Because [the plaintiff] purportedly told [the defendant] the visible changes in her breast were not acute, [the defendant] testified he believed the changes were '80% into the ballpark of radiation change, 20% into recurrent cancer,” the panel said. 'Given [Creech's] negligent failure to aggressively treat his patient for what he admitted was a 20% possibility of recurrent cancer, we agree the jury verdict in favor of appellant so shocks the court's conscience' as to require the award of a new trial.

In agreeing with Goodheart's evaluation of Davis' jury charge, Tamilia said it is hornbook law in Pennsylvania that trial courts should not charge their juries on concepts not supported by the evidence. Citing the Superior Court's 1999 decision in Kovach v. Solomon, Tamilia said an error in jury instructions may provide the basis for a new trial if it is shown that the instruction in question may have been responsible for the verdict.

Conclusion

Accordingly, the plaintiffs were granted a new trial not only because the defense verdict was ruled to be against the weight of the evidence, but also because the jury instructions provided at trial included charges not supported by the evidence, and might have confused the jury.

In a Philadelphia case in which a defendant doctor testified at trial that he believed there was a 20% chance that his patient's cancer had returned but that he did not do anything to confirm his suspicion until approximately 14 months later, the Superior Court ruled that a jury verdict for the defendant so 'shocked the conscience' as to merit a new trial.

A three-judge panel characterized the physician's inaction as 'negligent failure to aggressively treat his patient.' The panel also said the defendant's failure to order a biopsy after noting possibly cancerous changes to the plaintiff patient's right breast substantially increased the woman's risk of harm, and decreased her chances of remaining cancer-free for a 5-year period from perhaps 90% to zero.

Judges Stephen A. McEwen Jr., Mary Jane Bowes and Patrick R. Tamilia also concluded that now-U.S. District Judge Legrome D. Davis, who presided over the trial, had improperly charged the jury on a concept ' 'mere error in judgment' ' not supported by the evidence. 'The trial court instructed the jury that the
failure to order appropriate diagnostic testing would be negligence, but a 'mere error in judgment' in failing to order the appropriate test would not,' Tamilia wrote for the court panel. 'Under the instructions given, the jury was required to conclude it was at least permitted to choose error in judgment or negligence in failing to order appropriate diagnostic testing.'

The opinion indicates that because the defendant acknowledged that he thought cancer recurrence was a 20% possibility, his failure to conduct diagnostic testing was not simply an error in judgment.

Vallone v. Creech was before the Superior Court on appeal from trial Judge Bernard J. Goodheart's interlocutory order granting the plaintiff and her husband a new trial. According to the opinion, Davis, who was subsequently appointed to the U.S. District Court for the Eastern District of Pennsylvania, had presided over the trial before the matter was reassigned to Goodheart for post-trial proceedings.

Dr. Richard H. Creech first treated plaintiff Diane Vallone in March 1991 after a biopsy indicated the presence of malignant cancer in her right breast, Tamilia said. The plaintiff underwent a lumpectomy and remained under the defendant's care until 1993, when she went elsewhere for treatment due to her insurance coverage.

In August 1966, the opinion states, Vallone noticed significant changes in her breast, and scheduled an October appointment with Creech since that was the first date the physician had available. The judge said that during the October appointment, the woman told Creech about the changes in her breast, that it had begun to hurt, and that she was concerned about recurrence of the
cancer.

According to the opinion, the defendant ordered a bone scan, blood work and a mammogram. A week later, Vallone saw the defendant again, and stated that she was concerned about the changes in her breast. Tamilia said Creech told the plaintiff that the changes in her breast had resulted from the radiation therapy she underwent after the 1991 lumpectomy, and that she should visit him again in 3 months. But on Dec. 2, 1997, Vallone presented to Creech with a red rash on her right breast. (In his opinion, the judge remarks that no biopsy had been performed up to this point.) The plaintiff was diagnosed with a cancer recurrence during this visit, confirmed by a biopsy the following week, the opinion states. Vallone's breasts were subsequently removed, and surgery was followed by extensive chemotherapy.

Tamilia said that on appeal, the defendant argued that the jury heard expert testimony from both sides regarding the relevant standard of care, and that jurors concluded that he was not negligent in his treatment of the plaintiff. Additionally, Creech contended that the trial court wrongly substituted its own opinion for that of the jury when the court overturned the jury verdict.

The Superior Court reviewed testimony of two plaintiff's experts, both of whom told jurors that Creech deviated from the standard of care when he failed to perform a biopsy in August 1996. One expert, the opinion states, said that if a cancer patient presents with a dramatic change in breast appearance 5 years after completion of radiation, the treating physician must assume recurring cancer until a biopsy proves otherwise.

'While it is expected the plaintiff's expert witnesses would testify as such,' the opinion states, 'what especially shocked the conscience of the trial court, and this court as well, was the testimony offered by [the defendant] himself, wherein he admitted that upon his October 1996 examination of [the plaintiff], he believed there was a 20% chance the cancer had recurred, yet he did nothing to confirm that suspicion until approximately 14 months later. [The defendant] also testified that in October of 1996, when [the plaintiff presented with changes in the shape of her breast, he thought, 'What in the world is going on here? It could be a recurrence of her cancer; it could be due to the radiation therapy,'' the opinion states.

'Because [the plaintiff] purportedly told [the defendant] the visible changes in her breast were not acute, [the defendant] testified he believed the changes were '80% into the ballpark of radiation change, 20% into recurrent cancer,” the panel said. 'Given [Creech's] negligent failure to aggressively treat his patient for what he admitted was a 20% possibility of recurrent cancer, we agree the jury verdict in favor of appellant so shocks the court's conscience' as to require the award of a new trial.

In agreeing with Goodheart's evaluation of Davis' jury charge, Tamilia said it is hornbook law in Pennsylvania that trial courts should not charge their juries on concepts not supported by the evidence. Citing the Superior Court's 1999 decision in Kovach v. Solomon, Tamilia said an error in jury instructions may provide the basis for a new trial if it is shown that the instruction in question may have been responsible for the verdict.

Conclusion

Accordingly, the plaintiffs were granted a new trial not only because the defense verdict was ruled to be against the weight of the evidence, but also because the jury instructions provided at trial included charges not supported by the evidence, and might have confused the jury.