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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.'
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