Failure-to-Detect Claims Against Dermopathologists

Last month, we introduced a hypothetical medical malpractice case in which a dermopathologist ' a medical professional who focuses on the study of cutaneous diseases at a microscopic level ' read a patient's pathology slide and then reported to the treating physician that no evidence of cancer was found. In our scenario, we presumed that the dermopathologist misread the slide, which did indeed show cancer. How would we go about prosecuting a case like this in our two representative states, New Jersey and Pennsylvania?

Medical Experts

One of the first issues is to decide what expert is competent to criticize the original dermopatholigst for failing to detect the cancer cells on the pathology slide. Both Pennsylvania and New Jersey have similar requirements. Pennsylvania's stem from the MCARE Act (Medical Care Availability and Reduction of Error Act, Pennsylvania Act 13 of 2002). Pursuant to the MCARE Act, an expert testifying to a physician's adherence to the standard of care must:

• Be substantially familiar with the applicable standard of care for the specific disease at issue as of the time of the alleged breach of the standard of care;
• Practice in the same subspecialty as the defendant physician or in a subspecialty that has a substantially similar standard of care for the specific disease at issue; and
• In the event the defendant physician is certified by an approved board, be board-certified by the same or similar approved board.

The MCARE Act does provide that the court may waive the “same subspecialty” requirement for an expert testifying on the standard of care if the court determines that the expert is trained in the diagnosis or treatment of the condition, the defendant provided care for that condition, and such care was within the physician's specialty or competence.

In Pennsylvania, as a prerequisite to filing suit, the plaintiff's attorney must file a Certificate of Merit. Pennsylvania Rules of Civil Procedure 1042.3, entitled “Certificate of Merit,” provides, in pertinent part, that, within 60 days after the filing of the complaint, a certificate of merit must be signed by the attorney or party, providing that an “appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or the claim that the defendant deviated from an acceptable professional standard that is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard ' .”

The New Jersey Affidavit of Merit Statute, N.J.S.A. 2A.:53A-27, serves a similar purpose in that state. The referenced statute, and other applicable sections of N.J.S.A. 2A:53A, mandate that a plaintiff (the party who brings the lawsuit) who sues for damages stemming out of personal injuries, wrongful death, or property damage as a result of malpractice or negligence by a “licensed person,” provide each defendant with an affidavit from an appropriately licensed person (expert) within the field applicable to the case (e.g., radiology, pharmacology, obstetrics, engineering, etc.).

This affidavit must state that there is a reasonable probability that the afforded treatment and care by the defendants, and/or the skill or knowledge exercised by the defendants, fell outside of the acceptable customs, standards and/or practices of the profession. In New Jersey medical negligence cases, among other requirements, the expert doctor who issues the affidavit must be licensed to practice and have actively practiced within the field and/or sub-specialty of medicine applicable to the case; and must have no financial interest in the case.

A major difference between Pennsylvania and New Jersey is that, in Pennsylvania, the attorney need not disclose any information about the physician who provided the certificate of merit. However, in New Jersey there can be an entire hearing process to challenge the validity of the affidavit of merit.

Causation

Both the “Certificate of Merit” in Pennsylvania and the “Affidavit of Merit” in New Jersey require a finding that the physician deviated from the standard of care; but, of course, establishing this element is only part of the battle. The plaintiff must also demonstrate that the deviation from the standard of care is the proximate cause of the injuries.

The defendant dermopathologist will inevitably argue that even if he or she had properly interpreted the study and detected the presence of the cancer, the outcome would have been the same. In combating this argument, knowledge of the staging process and accompanying survival rates is critical.

Cases involving a deromopathologist will generally involve Melanoma, which is usually, but not always, a cancer of the skin. It begins in melanocytes, the cells that produce the pigment melanin that colors the skin, hair, and eyes. It also forms moles. Since most of these pigment cells are found in the skin, melanoma of the skin (cutaneous melanoma) is the most common type of melanoma. Skin cancers can be divided into two types: melanoma and non-melanoma. Non-melanoma skin cancers are usually referred to as basal cell carcinomas and squamous cell carcinomas.

The Melanoma research foundation website indicates that Stages for Melanoma are generally categorized as Stage 0, Stage IA and IB, Stage IIA and IIB and IIC, Stage IIIA, IIIB and IIIB and Stage IV. A designation of staging category is done by clinical diagnosis. It must be understood that staging has unique characterization for each type of cancer. Each stage has specific characteristics; however, in their most general sense, Stage 0 tumors are confined to epidermis and have not entered the dermis, a deeper layer of the skin. This stage of melanoma is also called melanoma in situ. At Stage I, the tumor has not spread to the lymph nodes, and a Stage II tumor has not spread to the organs, but has greater lymph node involvement. At Stage III, the lymph nodes are completely involved. Stage IV denotes metastatic cancer that involves the surrounding organs.

In its early stages, melanoma can be successfully removed and monitored by regular skin screenings. In fact, survival rates can exceed 90% to 95% in early-stage melanoma. However, in its most advanced stages, melanoma can be deadly, as few treatment options exist. Survival rates drop to less than 20% when melanoma has spread to other organs.

The difference in survival rates at the various stages is the basis for a showing of causation, and Pennsylvania's and New Jersey's standards on this issue would be virtually identical. However, the law differs in these two states on the measure of damages once causation is established.

Damages

Pennsylvania law does not discount the plaintiff's damages for the increased risk of harm. New Jersey law, on the other hand, provides a specific formula which limits the amount that a plaintiff can recover under his or her cause of action; this is called the Scafidi rule. See Scafidi v. Seiter, 119 N.J. 93 (1990). In Scafidi, the court held that, in a case where the evidence demonstrates that negligent medical treatment increased the risk of harm posed to a patient by a pre-existing condition, the defendant's liability is limited to the value of the lost chance for recovery attributable to defendant's negligence. Therefore, the verdict is molded to reflect the increased risk of harm, not the total amount of damages. For instance, if the chances of survival went from 90% to 45%, the plaintiff's pain and suffering award would be cut in half.

Conclusion

According to the American Cancer Society, skin cancer is the most common form of cancer in the United States, and melanoma, the most serious type of skin cancer, is one of the fastest-growing cancers both domestically and worldwide. Cases against dermopathologists can be strong because it is well known that early detection of melanoma is essential to improve the prognosis. However, prosecution of these types of cases differs from state to state, and a full understanding of the nuances of a particular jurisdiction's statutory and case law is essential to an optimal outcome. While this article is not, and was never intended to be, exhaustive on the issues discussed herein, hopefully it has provided a framework for conducting some of the case preparation necessary in prosecuting these difficult but righteous claims.

Brandon Swartz, a member of this newsletter's Board of Editors, is a partner in Swartz Culleton, PC, in Newtown, PA.'

Last month, we introduced a hypothetical medical malpractice case in which a dermopathologist ' a medical professional who focuses on the study of cutaneous diseases at a microscopic level ' read a patient's pathology slide and then reported to the treating physician that no evidence of cancer was found. In our scenario, we presumed that the dermopathologist misread the slide, which did indeed show cancer. How would we go about prosecuting a case like this in our two representative states, New Jersey and Pennsylvania?

Medical Experts

One of the first issues is to decide what expert is competent to criticize the original dermopatholigst for failing to detect the cancer cells on the pathology slide. Both Pennsylvania and New Jersey have similar requirements. Pennsylvania's stem from the MCARE Act (Medical Care Availability and Reduction of Error Act, Pennsylvania Act 13 of 2002). Pursuant to the MCARE Act, an expert testifying to a physician's adherence to the standard of care must:

• Be substantially familiar with the applicable standard of care for the specific disease at issue as of the time of the alleged breach of the standard of care;
• Practice in the same subspecialty as the defendant physician or in a subspecialty that has a substantially similar standard of care for the specific disease at issue; and
• In the event the defendant physician is certified by an approved board, be board-certified by the same or similar approved board.

The MCARE Act does provide that the court may waive the “same subspecialty” requirement for an expert testifying on the standard of care if the court determines that the expert is trained in the diagnosis or treatment of the condition, the defendant provided care for that condition, and such care was within the physician's specialty or competence.

In Pennsylvania, as a prerequisite to filing suit, the plaintiff's attorney must file a Certificate of Merit. Pennsylvania Rules of Civil Procedure 1042.3, entitled “Certificate of Merit,” provides, in pertinent part, that, within 60 days after the filing of the complaint, a certificate of merit must be signed by the attorney or party, providing that an “appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or the claim that the defendant deviated from an acceptable professional standard that is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard ' .”

The New Jersey Affidavit of Merit Statute, N.J.S.A. 2A.:53A-27, serves a similar purpose in that state. The referenced statute, and other applicable sections of N.J.S.A. 2A:53A, mandate that a plaintiff (the party who brings the lawsuit) who sues for damages stemming out of personal injuries, wrongful death, or property damage as a result of malpractice or negligence by a “licensed person,” provide each defendant with an affidavit from an appropriately licensed person (expert) within the field applicable to the case (e.g., radiology, pharmacology, obstetrics, engineering, etc.).

This affidavit must state that there is a reasonable probability that the afforded treatment and care by the defendants, and/or the skill or knowledge exercised by the defendants, fell outside of the acceptable customs, standards and/or practices of the profession. In New Jersey medical negligence cases, among other requirements, the expert doctor who issues the affidavit must be licensed to practice and have actively practiced within the field and/or sub-specialty of medicine applicable to the case; and must have no financial interest in the case.

A major difference between Pennsylvania and New Jersey is that, in Pennsylvania, the attorney need not disclose any information about the physician who provided the certificate of merit. However, in New Jersey there can be an entire hearing process to challenge the validity of the affidavit of merit.

Causation

Both the “Certificate of Merit” in Pennsylvania and the “Affidavit of Merit” in New Jersey require a finding that the physician deviated from the standard of care; but, of course, establishing this element is only part of the battle. The plaintiff must also demonstrate that the deviation from the standard of care is the proximate cause of the injuries.

The defendant dermopathologist will inevitably argue that even if he or she had properly interpreted the study and detected the presence of the cancer, the outcome would have been the same. In combating this argument, knowledge of the staging process and accompanying survival rates is critical.

Cases involving a deromopathologist will generally involve Melanoma, which is usually, but not always, a cancer of the skin. It begins in melanocytes, the cells that produce the pigment melanin that colors the skin, hair, and eyes. It also forms moles. Since most of these pigment cells are found in the skin, melanoma of the skin (cutaneous melanoma) is the most common type of melanoma. Skin cancers can be divided into two types: melanoma and non-melanoma. Non-melanoma skin cancers are usually referred to as basal cell carcinomas and squamous cell carcinomas.

The Melanoma research foundation website indicates that Stages for Melanoma are generally categorized as Stage 0, Stage IA and IB, Stage IIA and IIB and IIC, Stage IIIA, IIIB and IIIB and Stage IV. A designation of staging category is done by clinical diagnosis. It must be understood that staging has unique characterization for each type of cancer. Each stage has specific characteristics; however, in their most general sense, Stage 0 tumors are confined to epidermis and have not entered the dermis, a deeper layer of the skin. This stage of melanoma is also called melanoma in situ. At Stage I, the tumor has not spread to the lymph nodes, and a Stage II tumor has not spread to the organs, but has greater lymph node involvement. At Stage III, the lymph nodes are completely involved. Stage IV denotes metastatic cancer that involves the surrounding organs.

In its early stages, melanoma can be successfully removed and monitored by regular skin screenings. In fact, survival rates can exceed 90% to 95% in early-stage melanoma. However, in its most advanced stages, melanoma can be deadly, as few treatment options exist. Survival rates drop to less than 20% when melanoma has spread to other organs.

The difference in survival rates at the various stages is the basis for a showing of causation, and Pennsylvania's and New Jersey's standards on this issue would be virtually identical. However, the law differs in these two states on the measure of damages once causation is established.

Damages

Pennsylvania law does not discount the plaintiff's damages for the increased risk of harm. New Jersey law, on the other hand, provides a specific formula which limits the amount that a plaintiff can recover under his or her cause of action; this is called the Scafidi rule. See Scafidi v. Seiter, 119 N.J. 93 (1990). In Scafidi, the court held that, in a case where the evidence demonstrates that negligent medical treatment increased the risk of harm posed to a patient by a pre-existing condition, the defendant's liability is limited to the value of the lost chance for recovery attributable to defendant's negligence. Therefore, the verdict is molded to reflect the increased risk of harm, not the total amount of damages. For instance, if the chances of survival went from 90% to 45%, the plaintiff's pain and suffering award would be cut in half.

Conclusion

According to the American Cancer Society, skin cancer is the most common form of cancer in the United States, and melanoma, the most serious type of skin cancer, is one of the fastest-growing cancers both domestically and worldwide. Cases against dermopathologists can be strong because it is well known that early detection of melanoma is essential to improve the prognosis. However, prosecution of these types of cases differs from state to state, and a full understanding of the nuances of a particular jurisdiction's statutory and case law is essential to an optimal outcome. While this article is not, and was never intended to be, exhaustive on the issues discussed herein, hopefully it has provided a framework for conducting some of the case preparation necessary in prosecuting these difficult but righteous claims.

Brandon Swartz, a member of this newsletter's Board of Editors, is a partner in Swartz Culleton, PC, in Newtown, PA.'