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Maryland Court Reinstates $2.6M Award In Cancer Death
November 23, 2020
Y. Peter Kang
"Law360 (November 23, 2020, 8:21 PM EST) -- A Maryland appeals court on Monday reinstated a $2.6 million jury verdict in a suit accusing a radiologist of failing to timely diagnose a woman's breast cancer that caused her death, saying the trial judge's decision to toss the verdict was erroneous.
In a published opinion, a three-judge Court of Special Appeals panel reversed a Baltimore County judge's decision to grant a post-trial judgment notwithstanding the verdict in a suit accusing Dr. Sanford Minkin and his practice group, Advanced Radiology PA, of failing to timely diagnose Lana Burton's breast cancer, which allowed it to spread and caused her 2016 death.
The suit filed by the patient's family, husband Charles Burton and daughter Larae Burton McClurkin, alleges that Minkin in 2012 failed to properly interpret a mammogram and ultrasound taken after Lana Burton had found a lump in her breast. The alleged negligence caused the stage 1 cancer to go untreated for 15 months and advance to stage 3 cancer, according to the suit. After the jury had awarded the family approximately $2.6 million in damages, the trial judge granted Minkin's JNOV bid, saying the family failed to establish that the alleged negligence proximately caused the patient's death since their own medical expert purportedly opined that Burton had more than a 50% chance of survival even assuming Minkin had been negligent.
On appeal, the family argued that Minkin mischaracterized the testimony of their expert, Dr. Gabriel Pushkas. While the panel did not necessarily agree with that argument, it said on Monday that the trial judge erred by focusing on Pushkas' statement that patients like Lana Burton have a 66% chance of survival five years after being diagnosed with her form of stage 3 cancer.
The appeals court said instead, the trial court should've analyzed whether the evidence, when viewed in its entirety, supported the jury's determination that Minkin proximately caused Burton's death. Pushkas had also testified that if a stage 1, 2 or 3 cancer spreads, or metastasizes, "the patient will die"; that stage 3 cancer patients typically have a less than 50% survival rate in five years; and that Minkin's failure to diagnose and remove the cancer in 2012 caused it to spread, according to the opinion.
"The totality of Dr. Pushkas' testimony provides more than merely conjecture or speculation that had Dr. Minkin performed a biopsy of the lump in Ms. Burton's right breast in May 2012, it would have revealed that she had cancer," the panel said, noting that a biopsy may have revealed the fact that the patient had a particularly difficult-to-treat form of cancer known as triple-negative. "It may be logically inferred from that testimony that had the cancer been discovered, Ms. Burton may have survived."
The panel said the jury should've been given deference in light of conflicting medical expert
testimony. "While a review of the cold record of Dr. Pushkas' testimony might seem confusing or worse, contradictory, the jury had the benefit of hearing his testimony in-person and evaluated it," the opinion states. "They were free to believe all, part, or none of it.'
12/30/2020 Md. Court Reinstates $2.6M Award In Cancer Death Suit - Law360
https://www.law360.com/articles/1331674/print?section=appellate 2/2
Attorneys for the parties did not immediately respond to requests for comment Monday.
Judges Michael W. Reed, Gregory Wells and Robert A. Zarnoch sat on the panel for the Court of Special Appeals.
Burton is represented by George S. Tolley III of Dugan Babij Tolley & Kohler LLC, Ellen B. Flynn of Flynn Law Group LLC and Elisha N. Hawk of Brown & Barron LLC.
Minkin is represented by Andrew E. Vernick of Vernick & Associates.
The case is Willie James Barton Jr. et al. v. Advanced Radiology PA et al., case number 1336, September Term 2019, in the Court of Special Appeals of Maryland.
--Editing by Bruce Goldman.
Updated: This article has been updated to include additional counsel info.
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Source article available at: https://www.law360.com/appellate/articles/1331674?utm_source=shared-articles&utm_medium=email&utm_campaign=shared-articles?copied=1 "
Anne Arundel County Jury Awards $2.5M in Nerve Damage Case
March 16, 2015
Danny Jacobs
An Anne Arundel County jury has awarded more than $2.5 million to a woman with permanent nerve damage after a ruptured disc in her back went undiagnosed.
The award last week for Miriah Turner Donner includes $2 million in noneconomic damages, which would be reduced to $680,000 under Maryland’s cap on such damages in medical malpractice cases.
Donner was 19 years old when she arrived at Anne Arundel Medical Center’s emergency room on Sept. 6, 2010, complaining of severe back pain and numbness in her pelvic region, according to the complaint. Donner had three bulging discs in her back and said the pain “had been exacerbated” after she ran through an airport a few days earlier, according to the complaint, filed in September 2013.
Ellen B. Flynn, one of Donner’s lawyers, said her client’s back problems were degenerative but her trip to the emergency department was the first time she experienced numbness.
Jane Anne Corner, a nurse practitioner on call, noted Donner’s condition but did not perform a neurological consultation nor order an emergency MRI at the hospital, according to the complaint. Donner alleged Corner did not identify the numbness and back pain as signs of cauda equina syndrome, which affects nerve roots at the lower end of the spinal cord and can be caused bulging disks. The problem can be fixed if addressed promptly, according to Flynn, of Dugan, Babij & Tolley LLC in Timonium.
“The window of opportunity was missed because they didn’t pay attention to the red flag symptom of pelvic numbness,” said Flynn, who tried the case with Alison D. Kohler. “They needed to address it quickly.”
Donner’s ruptured disk was identified during a previously scheduled MRI two days after her emergency room visit, the complaint states. She went in for surgery the same day but by then had “complete numbness in the pelvis, thigh and buttocks” as well as problems going to the bathroom, the complaint states.
Donner continues to have numbness in her pelvic region and legs, Flynn said. During the nine-day trial before Judge Michele D. Jaklitsch, Flynn said the jury “wasn’t distracted” by defense claims that the standard of care was not breached or that the injury was Donner’s fault.
The jury of five women and one man deliberated for more than four hours before coming back with its verdict, Flynn said. Donner was pleased with the outcome, she added.
“It was a very emotional trial for her,” Flynn said. “We had to deal with personal issues and talk about them in front of strangers.”
Robert S. Morter, one of Corner’s lawyers, said a decision on an appeal will be made after rulings on forthcoming post-trial motions. Morter said the jury’s verdict reflected sympathy toward a young plaintiff but that Corner’s actions were “medically defensible” and Donner’s care was supported by the defense’s medical experts.
“We had a good client who we believe fully provided the standard of care to the patient,” said Morter, a shareholder with Wharton Levin Ehrmantraut & Klein P.A. in Annapolis.
Corner is an employee of Doctors Emergency Services P.A., which staffs the emergency room at Anne Arundel Medical Center. There were no allegations of wrongdoing against Doctors Emergency Services, and Corner’s supervisor was dismissed as a defendant after the plaintiff’s case was presented.
Anne Arundel Medical Center was dismissed from the case prior to trial.
MIRIAH TURNER DONNER V. ANNE ARUNDEL MEDICAL CENTER INC., ET AL.
Court: Anne Arundel County Circuit Court
Case No.: 02C13181797
Judge: Michele D. Jaklitsch
Outcome: Verdict for plaintiff for $2,523,869 – $2 million for noneconomic damages (reduced to $680,000 under the cap for noneconomic damages) and $523,869 for future economic damages
Dates: Incident: September 2010
Suit filed: Sept. 16, 2013
Verdict: March 10, 2015
Plaintiffs’ Attorneys: Ellen B. Flynn and Alison D. Kohler of Dugan Babij & Tolley LLC in Timonium.
Defendant’s Attorneys: Robert S. Morter and Dana K. Schultz of Wharton Levin Ehrmantraut & Klein P.A. in Annapolis.
Counts: Negligence, failure to obtain informed consent