Lazy Doctor Didn’t Conduct Tests – Wrongful Death Case Ensues

Our Medical Negligence Case Facts

Mark Pellerin thought something might be wrong with his health. He went to see his primary care physician, complaining of a painless lump in his right neck. His physician ordered a CT scan of the neck and referred Mr. Pellerin to an ENT or Ear Nose and Throat doctor.

According to the medical records, the ENT examined Mr. Pellerin and personally reviewed the CT scan of the neck. The CT scan report mentioned that the neck mass appeared to be something called a “brachial cleft cyst,” which is a benign (non-cancerous) lesion:

The ENT documented that he specifically warned Mr. Pellerin that a brachial cleft cyst was “the exception rather than the rule in an adult,” and that this type of mass usually represents the metastatic spread of cancer from a primary cancer somewhere in the oral cavity.

For that reason, the ENT recommended a “fine needle aspiration (“FNA”) biopsy. The FNA biopsy was done and reported back as negative for malignant cells. The ENT then discussed the findings in detail with Mr. Pellerin. Because a benign brachial cleft cyst is much less common than cancer under these circumstances, the ENT offered Mr. Pellerin the option of taking it out, which would have given the ENT an opportunity to make a definitive diagnosis.

Mr. Pellerin elected not to proceed with the surgery. Nearly three years later, Mr. Pellerin noticed that his neck was again swelling. After discussing the matter with his primary care doctor again, he made an appointment with a new ENT, as his first ENT had retired from practice. This second ENT examined Mr. Pellerin’s neck and oral cavity, finding nothing other than the right-sided neck mass. He also ordered another CT scan of the neck. The CT showed that the mass was now more dense, and the radiologist suggested a follow-up MRI to better characterize the mass.

ENT (2), however, did not obtain an MRI. Instead, he essentially relied on the prior, presumptive diagnosis of benign brachial cleft cyst, and he advised Mr. Pellerin that no further evaluation or treatment was necessary.

Another three years passed. Mr. Pellerin again complained to his primary care doctor that the neck mass was getting bigger. He was then referred to another ENT. ENT (3) saw Mr. Pellerin and was immediately suspicious that the mass was in fact cancer that had spread to the lymph nodes in the neck from some source in the oral cavity. He promptly launched an investigation. Unfortunately, ENT (3) was right: Mr. Pellerin had squamous cell carcinoma of the base of the tongue, which had spread to the neck, lung, spine, and liver.

By the time of the diagnosis, the only treatment that could be offered was palliative, not curative. Mr. Pellerin underwent chemotherapy and radiation with the hope of extending his life and easing his pain. He battled this cancer for more than a year, until he succumbed seven years after his original primary care physician appointment.

Our Medical Negligent Case: Investigation and Preparation

Mr. Pellerin’s widow hired The Eisen Law Firm shortly after her husband’s death. The Eisen Law Firm began working on this case immediately. The initial investigation focused on obtaining and reviewing more than 1,200 pages of medical records.

After the initial review of records, The Eisen Law Firm began reviewing pertinent medical literature to establish both the standard of care and proximate causation. Among other things, it was critical to determine whether earlier diagnosis would have made a significant difference in Mr. Pellerin’s prognosis. This was an important issue because by the time that ENT (2) arguably should have insisted on a more complete workup, the cancer already had spread from its initial site on the tongue to a new location in the neck. In The Eisen Law Firm’s opinion, the literature supported an argument that earlier diagnosis could have changed the prognosis, though whether it would have prevented Mr. Pellerin’s death was uncertain.

ENT (2) was lazy. He relied too heavily on the prior evaluation performed by the first ENT. A further evaluation was especially indicated because the appearance of the mass on the CT scan changed significantly from its original appearance. This should have prompted ENT (2) to reconsider the presumptive diagnosis.

Brian Eisen, lead attorney for The Eisen Law Firm, reviewed this case with several potential expert medical specialists, including three head and neck surgeons and a radiation oncologist. Ultimately, Mr. Eisen determined that this case – while potentially difficult – could be pursued, and he began to prepare the case for litigation.

Among other things, Mr. Eisen obtained the original digital CT scans and reviewed them in detail with an appropriate expert to verify the nature and extent of the changes in the mass over time. Mr. Eisen also took steps to proactively cut off a potential defense relating to the pathology of the neck mass. Mr. Eisen worked with his head and neck expert to develop an expert report on liability and causation. He also began working up the damages aspect of the case.

Our Medical Error Case: Negotiations and Settlement

Once the case was prepared fully for suit, The Eisen Law Firm approached the hospital where ENT (2) worked to discuss a potential resolution of the matter. The Eisen Law Firm has handled medical negligence cases exclusively for the past 24 years, and has had many cases – both settlements and jury trials – against this hospital. Mr. Eisen has developed an excellent reputation with the defense bar in general and this hospital in particular as a zealous and knowledgeable advocate and adversary. As such, he has been able to reach early resolutions with this hospital from time to time.

The hospital agreed to undertake negotiations. Ultimately, a confidential seven figure settlement was reached.