Defense lawyers prevail, attacked ‘reptile’ tactics pre-trial – Defense Verdict

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On Jan. 22, 2015, plaintiff presented to the defendant dermatology practice for evaluation of a non-healing lesion on her shin. A biopsy of the lesion was performed, and the subsequent pathology report reflected the lesion was cancerous. Surgical excision of the lesion was scheduled, but subsequently postponed on multiple occasions after plaintiff developed an infection. When plaintiff presented to the defendant dermatologist on March 31, 2015, for surgical excision, the defendant dermatologist concluded plaintiff was a poor surgical candidate and referred plaintiff to a radiation oncologist for evaluation of radiation therapy as a potential course of treatment for her cancer. The radiation oncologist concluded radiation therapy would be appropriate to treat the cancerous lesion, and plaintiff underwent radiation therapy. Following the course of radiation therapy, plaintiff developed a non-healing wound at the treatment site, which required her to undergo extensive treatment, including surgical intervention.

Plaintiff contended that the dermatology defendants failed to adequately communicate about the pathology report and apprise her of the various treatment alternatives and options that were available if surgery could not be performed on March 31, 2015. The dermatology defendants denied all allegations of negligence.

Plaintiff pursued a “lack of informed consent” claim against the radiation oncologist defendant. Plaintiff alleged the radiation oncologist defendant did not adequately inform her of the risks of radiation necrosis or a radiation-induced second malignancy; and that the radiation oncologist defendant was required to advise plaintiff it would be better to proceed with surgical management of her cancer (as opposed to radiation). Plaintiff further alleged the radiation oncologist defendant failed to obtain a more definitive diagnosis of plaintiff’s squamous cell carcinoma prior to recommending and performing radiation therapy. The radiation oncology defendants denied all allegations of negligence.

The jury returned a verdict in favor of all defendants. The dermatology defendants were represented by Michael E. Olszewski and Benjamin M. Wengerd, and the radiation oncology defendants were represented by Paige Levy Smith and Madelaine A. Kramer. Prior to trial, the court granted the radiation oncology defendants’ motion to preclude reptile tactics at trial, including any “do no harm,” “reptile related theories” or “arguments adopting the Golden Rule.”

[19-T-073]

Type of action: Medical Malpractice

Injuries alleged: Permanent Injury to Leg, Past Medical Expenses, Pain and Suffering

Court: Fairfax Circuit Court

Tried before: Jury

Name of judge: Judge John M. Tran

Date resolved: April 11, 2019

Demand: $5,000,000

Verdict or settlement: Defense Verdict

Attorneys for defendant: Michael E. Olszewski and Benjamin M. Wengerd, Fairfax; Paige Levy Smith and Madelaine A. Kramer, McLean