By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
David Vassalli, 2016 JD Candidate
Pepperdine University School of Law
News: In 2011, a 61-year-old woman was informed she had stage 3 cervical cancer. She was told this news at the same medical center from which she had received her last three yearly vaginal examinations. In each of her prior three examinations, the woman complained of pain, but she was informed her Pap smears were negative for cancer. The slides that were produced from her last three Pap smears were examined by the same technician each time at the medical center. The pain that the woman had been experiencing in her vaginal area for years worsened, and she returned to the hospital a few months after the third time she was told she had no signs of cervical cancer. She saw a different gynecologist at the medical center this time who found the woman had stage 3 cervical cancer, which the woman’s prior Pap smears indicated she had been suffering from for the past three years.
Experts testified that her likelihood of a complete recovery went from 95% to 50% because of the three-year delayed diagnosis. However, the woman subsequently went through chemotherapy and numerous surgeries to treat her cervical cancer, which was in remission when she sued the medical center. She sued the medical center for the negligence of her gynecologist and the technician who incorrectly read her test results. The gynecologist later was dropped from the suit, but the jury found the hospital liable for $9.6 million for the technician misreading the test results and failing to diagnose the woman’s cervical cancer. The award included $818,000 for past medical costs, $818,000 for future medical costs, $5 million for pain and suffering, $1 million for permanent impairment, and $2 million for her husband’s loss of consortium.
Background: In 2009, 2010, and 2011, a woman received her regularly scheduled vaginal examinations with her gynecologist. Each time the woman was examined, she complained of pain in her vaginal area. A technician at the same medical center was tasked with examining the Pap smear each year she had been examined. The technician indicated that, despite the woman’s pain and the gynecologist’s report that reflected the pain, she was cancer-free. A few months after her third examination in 2011, the woman returned to the medical center and complained that her pain was worsening. Due to her gynecologist being unavailable, another physician examined the woman and, after further examination and testing, informed her that she had stage 3 cervical cancer. It also was determined that she had cervical cancer for the past three years, and the slides and scans from her Pap smears indicated this cancer was present in all of her past examinations.
The woman had to undergo chemotherapy and numerous surgeries, and she spent many weeks in the hospital. The treatment was successful, and the woman’s cancer has been in remission since 2012. However, she still suffers from loss of brain function due to the chemotherapy, loss of blood flow to the small bowel, and chronic pain and fatigue. Also, she must use a colostomy bag. The woman filed a lawsuit against the medical center for the negligent conduct of its gynecologist and technician. The gynecologist later was dropped from the lawsuit, and the lawsuit focused on the negligent conduct of the technician who failed to diagnose the cervical cancer. The woman’s attorney had another physician look at the slides, and the physician determined they all showed signs of cancer, starting with stage 1 cervical cancer in 2009. As such, the woman particularly alleged the failure to diagnose the cervical cancer for three years caused her chance of a complete recovery to drop from 95% to 50%, as well as causing the need for the medical treatment she received, the medical treatment she will have to receive, and her current poor health.
Despite the woman being cancer-free from 2012 to the time of her trial in 2015, the jury deliberated for just more than one hour before holding the medical center liable for $9.6 million. The jury awarded $818,000 for past medical costs, $818,000 for future medical costs, $5 million for the woman’s pain and suffering, $1 million for permanent impairment, and $2 million for her husband’s loss of consortium.
What this means to you: This case shows the need of all staff members to remain diligent when dealing with routine procedures. The failure to remain diligent can be seen in this case from the technician as well as the gynecologist. The technician simply failed to detect signs of cervical cancer on three occasions. With a diagnosis as consequential as cancer, physicians and supporting staff must put in their due diligence when reviewing test results for it. Not only can the patient suffer greatly from such serious test results not being thoroughly examined, but the physician or staff will be harshly judged by jury members who likely fear something similar could happen to them. This concern of the jury was illustrated by the jury taking just 75 minutes to decide the medical center should pay nearly $10 million to the woman and her husband for not detecting the cancer earlier when a proper reviewing of the test results would have done so. Given the high cost to the patient, hospital, and the staff at times, the results of routine tests for serious ailments should be carefully examined.
Another lesson that can be learned from this case is the need to listen and give consideration to the patient’s expressed symptoms. In this case, the gynecologist eventually was dropped before the case went to trial. However, the gynecologist’s patient was diagnosed with stage 3 cancer, and the medical center where he works lost a large lawsuit. Had the woman’s three years of complaining about pain in her vaginal area, which the woman claims was so bad she could not sit down at times, elicited further inquiry into her test results by her gynecologist, the cervical cancer could have been discovered at an earlier stage, and the hospital could have avoided significant liability. Furthermore, learning that the test results were negligently misread, even though the woman was repeatedly complaining of pain in the region that was being tested, likely will lead members of the jury to believe the patient’s concerns were being ignored. It likely will lead them to a sympathetic view for the patient, who is arguably doing everything the patient can to have something that is concerning them treated.
Moreover, in this case a pathologist, which is a physician expert in recognizing cancerous cells in human tissue, should have been consulted to review the slides. In fact, a technician, no matter how well trained, is usually not licensed to make a diagnosis. Technicians collect and report data to a licensed independent practitioner, who proceeds to make a diagnosis based on the data. By law, human tissue removed during a surgical procedure is sent to a pathology laboratory where technicians prepare the tissue to be sliced thin enough to enable visualization of individual cells when viewed under a microscope. The final review should be made by a pathologist.
Too often, technicians document the presence or absence of disease when assisting physicians such as pathologists, as well as radiologists who also review countless results. This practice is dangerous, especially if the physician comes to rely too strongly on the technician’s opinion. In this case, the treating physician should have confirmed the negative test result with the pathologist when the woman returned with complaints of continued pain. In sum, an additional step or two by a physician who is dealing with a patient consistently complaining of a symptom could result in better care for the patient and shelter the medical center and possibly the physician from liability.
Androscoggin County Superior Court, Maine, Case Number CV-12114 (May 19, 2015).