Pathologist not negligent in treating patient’s skin cancer – Defense Verdict

Plaintiff alleged the defendant pathologist negligently misdiagnosed an Aug. 9, 2012, skin punch biopsy as malignant melanoma in situ, an early stage of melanoma in which the cancer is confined to the epidermis. Based on the malignant melanoma in situ diagno­sis, plaintiff underwent a wide excision of the lesion – approximately 6.1 cm in diameter – from her right shin on Aug. 31, 2012.

After the excision, the surgical specimen was diagnosed as a benign seborrheic ker­atosis. Plaintiff’s dermatologic surgeon re­quested an over-read of the original Aug. 9 punch biopsy specimen from the defendant pathologist’s partner and from Mayo Labo­ratories in Rochester, Minnesota. Both the in-house over-read and the Mayo over-read concluded that the original punch biopsy showed neither malignant melanoma in situ nor seborrheic keratosis, but a third di­agnosis of squamous cell carcinoma in situ. Squamous cell carcinoma in situ is, like ma­lignant melanoma in situ, a skin cancer, but is less likely to spread and metastasize.

At trial, plaintiff, a breast cancer survi­vor, claimed that if she had known her skin cancer was squamous cell carcinoma in situ rather than malignant melanoma in situ, she would have chosen a less invasive thera­py, such as topical chemotherapy, and would have chosen surgery only as a last resort. Plaintiff claimed that following her Aug. 9 excision, she developed excruciating nerve pain that persisted even after the excision site healed. Plaintiff, a physical therapy as­sistant in a podiatry practice, sought treat­ment from her co-worker podiatrists and underwent several ultrasound-guided pain injections without relief.

Ultimately, plaintiff traveled to St. Lou­is to treat with and undergo surgery per­formed by plastic surgeon and nerve special­ist Susan Mackinnon, M.D., of Washington University. Plaintiff reported her pain im­proved but did not resolve after the Oct. 27, 2015, procedure, and that she planned to seek additional treatment.

At trial, plaintiff’s expert pathologist tes­tified the defendant pathologist was negli­gent in: 1) failing to obtain a second opinion from another pathologist before concluding that plaintiff’s punch biopsy showed malig­nant melanoma in situ; or 2) failing to per­form immunohistologic staining to confirm the malignant melanoma in situ diagnosis. Plaintiff’s treating dermatologic surgeon, who also testified as an expert on her be­half, testified that if he had known plain­tiff’s lesion was squamous cell carcinoma in situ, he would not have performed a wide excision, and would have permitted her to undergo topical chemotherapy instead. Dr. Mackinnon explained how plaintiff’s nerve was injured in the course of the excision and the extensive surgery she performed to deaden the injured nerve.

The defendant pathologist was called ad­versely and explained to the jury why, even though Mayo ultimately diagnosed the le­sion as squamous cell carcinoma in situ, the skin cancer was concerning, had character­istics of malignant melanoma in situ, and warranted excision. The defense expert pa­thologist echoed the defendant pathologist’s testimony and, using a photograph from a textbook he authored, showed how plain­tiff’s skin cancer mimicked malignant mel­anoma in situ exactly. The defense expert dermatologist, a skin cancer specialist and Mohs surgeon, testified that plaintiff’s skin cancer required surgical removal regardless of whether it was malignant melanoma in situ or squamous cell carcinoma in situ be­cause of its size and location. The defense expert plastic surgeon likewise explained that topical therapy would not have been an appropriate or safe treatment for plaintiff’s particular skin cancer.

Although the defendant pathologist prac­ticed in the laboratory at the defendant hospital, he maintained a separate profes­sional entity with his partners and was not a hospital employee. Despite the defendant pathologist’s deposition and trial testimony to that effect, plaintiff maintained that the defendant pathologist was an employee and that the hospital should be held accountable for his alleged negligence. After more than four hours of deliberation, the jury declined to reach the employment question, finding instead in favor of the defendant pathologist and delivering a defense verdict.

Type of action: Medical Malpractice

Injuries alleged: Misdiagnosed skin cancer result­ing in unnecessary surgery and nerve injury

Tried before: Jury

Date resolved: September 15, 2016

Special damages: Plaintiff claimed $106,090.46 in medical expenses and lost wages at trial

Demand: Ad Damnum $2,050,000.00

Offer: $45,000.00 (on behalf of pathologist only)

Verdict or settlement: Defense Verdict

Attorneys for defendant: John E. Peterson and Meredith Brebner, Glen Allen; Robyn P. Ayres and Marshall H. Ross, Glen Allen.

Plaintiff’s experts: Ralph S. DeSimone, M.D. (pathology); Mark P. Eid, M.D. (dermatology); Susan W. Mackinnon, M.D. (nerve surgery)