Robert R. Sappe recently obtained a unanimous defense verdict in favor of a local pulmonologist before an Orange County, NY jury. The plaintiff had alleged that the pulmonologist had failed to diagnose and treat lung cancer in a 49-year-old lineman (the “decedent”) who worked for Verizon.
The decedent first saw Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) pulmonologist client in June 2020 complaining of a cough and shortness of breath. A computed tomography (CT) scan showed the presence of what appeared to be interstitial lung disease (ILD), a progressive autoimmune condition that causes permanent scarring of the lungs. In August 2020, the pulmonologist advised the decedent to see a thoracic surgeon for a lung biopsy to confirm the diagnosis of ILD. The decedent delayed in getting the biopsy until December 2020.
The pathology report of the lung biopsy came back in early January 2021 confirming the presence of ILD and also showing a small focus of what appeared to be lung cancer. The pathologist indicated that the cancer was close to the margin of resection and was the type of cancer that could arise in multiple locations in the lung at once (multifocal). Both findings raised concern for more cancer being present in the lung. However, rather than pursue workup of possible residual cancer, the pulmonologist urged the decedent to start treatment for the ILD and indicated that the risk of cancer could be monitored with follow up CT scans.
The decedent’s widow alleged that she attended this January 2021 office visit between her husband and the pulmonologist, and she further alleged that she asked the pulmonologist to refer her husband to a specialized ILD clinic at Columbia Presbyterian for treatment of the ILD, and to Memorial Sloan Kettering Cancer Center for treatment of the cancer. She alleged that the pulmonologist discouraged her from taking her husband to either facility, insisted that he didn’t have cancer and said that he could treat ILD just as adequately as the people at Columbia could.
A further CT scan was then done in January 2021 and appeared to show an area concerning for cancer near where the lung biopsy surgery took place. However, the pulmonologist felt this area represented post-surgical changes from the previous lung biopsy. The radiologist who interpreted the CT scan also suggested performing a follow up positron emission tomography (PET) scan – a test to look for cancer – to evaluate this area. However, the pulmonologist did not feel a PET scan would be helpful as the results would be skewed by the decedent’s ILD and the recent biopsy surgery Instead, the pulmonologist’s plan was to treat the ILD and then repeat the CT scan.
Unfortunately, the decedent contracted COVID-19 in late January 2021 which delayed the start of the treatment of the ILD. His bout of COVID also worsened his lung condition such that he then needed a portable oxygen tank.
Treatment of the ILD began in March with specialized intravenous medication that was administered over the course of several weeks. Following the administration of this specialized medicine, the decedent suffered an exacerbation of his lung condition (in early April) and went to the ER where he was seen by a different pulmonologist. That pulmonologist referred the decedent to the Columbia Presbyterian ILD clinic.
In May, the decedent saw the physicians at the Columbia ILD clinic who ordered an updated CT scan. That CT scan showed areas concerning for cancer. The Columbia physicians then ordered a PET scan and another lung biopsy of a suspicious area seen on the PET scan. That lung biopsy, which was done in early June 2020, showed the presence of more lung cancer in the left (opposite) lung. This cancer was similar to the cancer seen on the right lung biopsy done back in December 2020.
The decedent was referred to Memorial Sloan Kettering where he was diagnosed with stage IV lung cancer (cancer in both lungs). Chemotherapy started in mid-June but had to be halted due to the decedent’s worsening lung condition and the development of a pneumothorax (leak of air from the lung). The decedent died from lung failure attributed to his lung cancer on September 30, 2021.
The plaintiff alleged that the decedent should have been referred to an oncologist for further workup of cancer in January 2021 when the pathology report demonstrated the presence of cancer. The plaintiff further alleged that, if the decedent had been referred to an oncologist in January 2021, a PET scan would have been completed which would have shown the presence of more cancer which could have been treated. The plaintiff alleged that earlier treatment would have extended the decedent’s life.
Mr. Sappe provided the jury with evidence to support the defense that treatment of the ILD was more important than referring the patient to an oncologist to investigate the possibility of residual cancer. Mr. Sappe demonstrated that the decedent’s ILD could be just as deadly as cancer and the progression of the ILD needed to be stopped. Thus, the pulmonologist’s treatment plan was not negligent. Mr. Sappe also demonstrated to the jury that the decedent’s delay in getting the initial biopsy delayed the treatment of his ILD, causing his lungs to worsen. When the pulmonologist wanted to start treatment, the decedent contracted COVID, which further delayed the treatment plan through no fault of the pulmonologist. In fact, COVID caused the ILD to progress more rapidly, creating even more urgency in starting treatment for ILD.
Finally, Mr. Sappe demonstrated that the decedent’s death was caused mostly by his advancing ILD, worsened by the development of the pneumothorax caused by the second lung biopsy. Ironically, it was the workup of the cancer (by performing another biopsy) which led to the decedent’s death.
The jury deliberated for less than two hours and returned a unanimous verdict in favor of the FKC&S’s client, the pulmonologist.