February 1, 2023
In November 2022, Attorney Matzus obtained a verdict on behalf of the family of a client who died as a result of a delay in diagnosing cancer. While the verdict amount is subject to confidentiality, the amount of the verdict was over six times more than the last settlement offer made before trial. The case involved a delay in diagnosing recurrent and persistent scalp growths, called Actinic Keratoses, on the patient’s scalp. Actinic Keratoses are pre-cancerous growths that develop primarily from sun exposure and are rough, sandpaper-like patches of skin. If left untreated or inappropriately treated, they can develop into cancer. More importantly, if a physician treats the growths and they return after treatment, the physician needs to biopsy them to make sure they are not cancerous. The most commonly employed treatment is cryotherapy, in which liquid nitrogen is applied to the lesion. After liquid nitrogen treatment, the treated areas blister and become crusted, slough off, and then heal in a matter of days. Liquid nitrogen therapy is both therapeutic and diagnostic. The treatment is therapeutic if it completely resolves the lesion and it doesn’t return. The treatment is diagnostic in the sense that if the lesion returns, you can no longer presume that the lesion treated with liquid nitrogen is merely a pre-cancerous lesion.
In this case, the scalp lesions returned after the physician treated them with liquid nitrogen but the physician never performed the biopsy on the lesion until it was too late. Our dermatology expert indicated that if you apply liquid nitrogen to an Actinic Keratosis growth and it returns, the standard of care requires you to biopsy the lesion to make sure it is not cancer. The physician in this case never did that until it was too late. After approximately one year of delay, the physician finally biopsied the concerning growth that had been present on the patient’s scalp. The biopsy results revealed that the cancerous growth was very extensive. The biopsy results indicated that the cancerous tumor was infiltrative with perineural invasion. Infiltrative means that the cancer has spread beyond the layer of the tissue in which it developed and is growing into surrounding, healthy tissue. Perineural invasion means that the cancer has invaded the nerve pathway and is a route of metastatic spread. Due to the extensive nature of the tumor spread, the patient had a high risk of recurrence and metastatic spread to other parts of his body. Ultimately, several years after the tumor was biopsied, the patient subsequently died from metastatic cancer of the lung.
The defendant disputed liability by arguing that the treatment complied with the applicable standard of care and the physician wasn’t required to biopsy the lesion despite its concerning appearance. Additionally, the defense argued that the lung cancer was caused by unrelated underlying medical conditions. Fortunately, Attorney Matzus was successful in overcoming both of those defense arguments and was able to prove that the doctor should have biopsied the scalp lesion much sooner in time and that the doctor’s failure to do so, allowed the tumor to grow and become more extensive and invasive resulting in metastatic spread to the lung which caused the patient’s death.