Doctors failed to diagnose man’s cancer at early stage – $1.5M Verdict

The decedent, Ger­ald Teeuwen, was a 77-year-old bicy­cle racer, who nev­er smoked, but had a persistent cough when he presented to Patient First on Jan. 3, 2013. A chest X-ray was read as abnormal, and he was referred to Dr. Birk (pulmon­ologist) for evaluation. Decedent carried his abnormal film with him, but Dr. Birk ordered a subsequent film, without looking at the first one. The second film was read by Dr. Lowden.

Plaintiff sued Birk and Lowden for failure to properly interpret the Jan. 15 CXR; for Birk’s discrete (admitted) fail­ure to review the (first) abnormal study, and for his failure to provide this prior study to Lowden for comparison. The defense claimed that (1) Lowden’s study was properly interpreted as within nor­mal limits; (2) that Teeuwen had Stage IV cancer as of the Jan. 15 office visit and (3) that the standard of care did not require either doctor to review the first study.

Damages, including lost wages, to­taled about $400,000; the life expectancy table showed eight years, four months remaining. A demand for $1.5M was re­jected. The jury returned a joint and sev­eral verdict against Birk and Lowden for $1,125,000.00, plus $176,646.06 in medical expenses – the exact sum claimed – with interest from Feb. 2, 2014 – the date of actual diagnosis. The verdict stands at $1,505,772.68 with in­terest running.

Plaintiff’s experts explained that while the mass was more difficult to discern on Lowden’s study, it was still demonstrat­ed. The jury requested plaintiff’s viewbox during deliberations and so it must be presumed the panel saw it as well. Birk admitted that as of his deposition he had never looked at the first study – and only gave it to counsel because suit was filed. Lowden confirmed that he never knew of it, never inquired if any comparison studies existed and did not know why the CXR he interpreted was ordered.

Plaintiff’s experts testified that if a CT scan had been ordered, it would have di­agnosed Stage I cancer and prompted sur­gical resection, which carries a 75 percent chance of cure. By the time of diagnosis in 2014 it was too late for salvage, because Teeuwen had metastasis to the brain and the bone. Therefore the opportunity for cure/prolonged survival was lost in 2013.

Defendants argued the “Doubling time theory” to sponsor testimony that Teeuw­en had Stage IV cancer, with metastasis to the brain as of 2010. Plaintiff success­fully illustrated the concept of doubling time was junk science.

Doubling time is never used by onco­logical clinicians and is only espoused by hired guns in malpractice litigation – which defense experts admitted in depo­sitions.

By the time of diagnosis, the mass, still located in the posterior segment of the left lower lung, had more than tripled in size. Even though adenocarcinomas are not slow-growing cancers, it was not an invasive, aggressive variety. This fact was demonstrated on autopsy, because it was shown that the lesion had “extended” into the hilum, absent invasion of nearby lymph nodes. Nevertheless, by the time Teeuwen’s cancer was diagnosed it was Stage IV (with metastasis to the brain and bone).

He was treated with chemo and whole brain radiotherapy, but could not tolerate the treatment and died four months later. Teeuwen left a widow, 81, to whom he had been married 50 years. He had two chil­dren, one of whom was trying to carry on the family nursery.

[16-T-150]

Type of action: Medical Malpractice

Injuries alleged: Wrongful Death

Name of case: Gerald Teeuwen v. Drs. Birk, Lowden

Court: Chesapeake Circuit Court

Case no.: 15-825

Tried before: N/A

Name of judge: Honorable John W. Brown

Date resolved: Sept. 14, 2016

Special damages: $176,646.06 (medical bills); $194,901.00 (lost wages); $371,547.06 total

Demand: $1,500,000

Offer: $0

Verdict or settlement: Verdict

Amount: $1,505,772.68

Attorneys for plaintiff: Judith Cofield, Virginia Beach; Carlton Bennett, Virginia Beach

Attorneys for defendant: Rich Nagle, Richmond; Rodney Dillman, Norfolk

Plaintiff’s experts: Drs. Mark Campbell and Gerald Sokol (oncologists), Drs. Douglas Gibson and Michael Brunner (radiologists) and Dr. Thomas DeMarini (pulmonolgist)

Defendant’s experts: Drs. Feigert and Ettinger (oncologists), Gabrielson (pathologist), Drs. Fruman and Fanney (radiologists) and Lamberti (pulmonary)