Firm Partner Peter A. Schmidt reached a $1.4 Million mediated settlement in a case involving the death of 43-year-old farmer where there was a failure diagnose colonic changes that lead to metastatic colon cancer. Read the following Minnesota Case Report:
Selected Results*
(Excerpts taken with permission from Minnesota Trial Lawyer Association’s (MTLA) “Minnesota Case Reports”)
Wisconsin farmer, DD, was diagnosed with ulcerative colitis in 1986 after having abdominal symptoms consistent with the disease. In May 1987, defendant Dr. M confirmed the diagnosis and began treating DD for the disease. Dr. M continued his care and in February 1998, noted that “I think we probably ought to do a colonoscopy sometime in the not too distant future to see exactly what the extent of his disease is, prognostic standpoint.” In March 1999, Dr. M noted “I suggested to him that after about 10 years of the disease, which will be 2003, that he should have a colonoscopy. He has never really had a colonoscopy and we do not know the entire extent of his disease.” Despite the recognition that the disease had been inadequately assessed and that standard practice required regular colonoscopy to begin 10 years after diagnosis of disease, a colonoscopy was never carried out. DD was diagnosed with colon cancer in October of 2004 and died of his disease on December 15, 2004.
Ulcerative colitis carries a significant increased risk of colon cancer. The risk corresponds to the duration and extent of disease. Because of the known risk, every major cancer society and gastroenterolic organization has advocated aggressive surveillance by colonoscopy. Colonoscopy should be carried out every one to two years after the initial examination and random biopsies should be obtained throughout the colon to survey for possibly precancerous changes that are not yet overtly visible. If these are found, a colectomy should be performed on the patient because of the high risk of progression to malignancy. This strategy has been shown to decrease overall cancers by removing precancerous tissues and by finding cancers at an earlier stage, resulting in a higher probability of 5 year disease free outcome. Plaintiffs disclosed numerous texts, articles and guidelines setting forth the standard of care.
Defendant aggressively disputed causation. Defendant disclosed several pathologists and an oncologist/hematologist. The defense pathologists testified that this was not a garden variety adenocarcinoma but rather a very rare, aggressive form of colon cancer called a neuroendocrine carcinoma. Literature indicates neuroendocrine carcinomas have much less favorable prognostic factors associated with it. In essence, their testimony was that given this aggressive form of cancer, even earlier detection would not have made a difference. They also disputed the chances of random biopsies leading to colectomy.
Plaintiffs then disclosed a colon cancer pathology specialist who has a subspecialty of neuroendocrine carcinoma. He testified this was a poorly differentiated carcinoma with adenocarcinoma and neuroendocrine features. More importantly, plaintiffs’ pathologists felt that both carcinomas arose from the dysplasia. Furthermore, that evidence of dysplasia would have been present prior to malignancy developing thereby leading to colectomy if accepted standards of practice had been followed, thereby reducing the risk of any type of colon cancer developing to 0. Defendants also disclosed a doubling time specialist who testifies quite frequently in delayed diagnosis of cancer cases throughout the country. His testimony, in essence, was that by the time colon cancer is clinically detectable, it had already spread thereby reducing a patient’s chance of cure to 0. During deposition, when questioned about the precancerous dysplasia aspect of this case, defense expert readily admitted that if a patient was allowed to progress from normal tissue to invasive cancer due to negligence, he would testify for the plaintiff. Also it was pointed out that this experts theory is not recognized by any national cancer organization and, in fact, runs contrary to “earlier is better” theory. It also helped that plaintiffs’ causation expert was the director of the colon cancer prevention clinic at the University of Wisconsin and the defense experts stem from Pittsburgh, PA and Los Angeles, CA.
Regarding damages, DD was a 43 year old dairy farmer survived by his wife who was approximately 8 months pregnant at the time of DD’s death. Despite heroic medical measures, DD did not survive to see the birth of his daughter.
DD was a very successful dairy farmer with a long family history in the area. Defense disclosed several economists who concluded the present value of DD’s economic contribution over the next 30 years totaled only $17,000.00. Subrogated medical expenses of $60,000.00 were paid.
The case settled 3 weeks before trial.
|
Settlement: |
$1,400,000 (mediated settlement) |
| Case Name: | KD. v. Dr. M. |
| Date: | January, 2007 |
| Attorney | Peter Schmidt |
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