Virginia Lawyers Weekly//September 25, 2023
Virginia Lawyers Weekly//September 25, 2023//
Type of action: Medical malpractice
Injuries alleged: Failure to respond to elevated pancreatic tumor markers, leading to significant delay in diagnosis and treatment and resulting in untimely death
Date resolved: 3/16/2023
Verdict or settlement: Settlement
Attorneys for plaintiff: Travis W. Markley, Richard L. Nagle, James N. Knaack, Benjamin M. Wengerd and Heather E. Zaug, Reston
Description of case: The patient was a 69-year-old male who presented to his physician in January 2018. The physician’s practice purported to perform increased surveillance for potential life-threatening conditions as part of their services. As such, the patient submitted to a battery of laboratory studies that included tumor marker testing. Among the studies was a blood test for the presence of CA 19-9, a specific tumor marker that may be elevated in the presence of pancreatic cancer.
The tumor marker testing performed in January 2018 returned an elevated CA 19-9 enzyme (253 U/mL) that was nearly seven times the upper limit of normal (37 U/mL). Despite being aware of these results, the physician who ordered the testing did not take any steps to have the elevated tumor marker evaluated further. In the note and letter summarizing the January 2018 test results, the physician affirmatively reported to the patient that all his relevant surveillance testing results for cancer were “normal.”
The physician responsible for the patient’s care departed in March 2018. The departing physician did not advise anyone at the practice of the patient’s elevated CA 19-9 levels or of any plan for follow up on those tumor markers. For its part, the practice conducted no review of the patient’s chart upon the physician’s departure and entirely failed to appreciate the elevated CA 19-9 levels. Neither the departing physician nor the practice participated in a coordinated handoff of the patient’s care to ensure that all health items requiring follow-up were addressed.
In April 2019, the patient returned to the practice and the same panel of labs was ordered, including repetition of the tumor marker testing performed in January 2018. The April 2019 results of the CA 19-9 enzyme testing were markedly more elevated than they were the year before (622 U/mL), approximately two and a half times higher than in January 2018 and nearly 17 times higher than the normal limit.
The practice physician who saw the patient in April 2019 noted the elevated levels from both April 2019 and January 2018 and immediately referred the patient for imaging, then oncology evaluation and treatment. The patient’s treating oncology team at Johns Hopkins University determined that his pancreatic tumor was borderline resectable, with surgery to be evaluated after chemotherapy and radiation to shrink the mass. Despite aggressive oncology treatment starting at the end of May 2019, the patient died in January 2020. He was survived by his wife and four adult children.
Plaintiff alleged that the physician and practice responsible for the patient’s care in 2018 breached the standard of care by failing to appreciate and respond to the significantly elevated CA 19-9 levels. The treating medical oncologist managing the patient’s care after diagnosis opined that a timely response to the elevated pancreatic tumor marker after the elevated CA 19-9 levels were returned in January 2018 would have given the patient a greater than 50% chance of surviving five years after diagnosis. The treating medical oncologist further opined that the patient would have been in the rare group of patients whose pancreatic cancer would have been survivable due to early diagnosis and that his chance of definitive cure through surgical resection was destroyed by the delay in diagnosis.
The physician defendant designated a standard of care expert to testify that because the CA 19-9 test is an unusual one to order and is not exclusively diagnostic of pancreatic cancer, the physician’s conduct met the standard of care. The practice defendant designated a standard of care expert to testify that it had no obligation to review the patient’s chart for outstanding follow-up items upon the physician’s departure. Both defendants jointly retained a medical oncologist and a surgical oncologist to opine that the year-plus delay in diagnosis had no impact on the patient’s life expectancy considering the grim overall survival statistics for pancreatic cancer and the patient’s comorbidities.
The case resolved a week after the deposition of plaintiff’s first standard of care expert.
Travis W. Markley, counsel for plaintiff, provided case information.