Sometimes it feels like anything that can go wrong does. That certainly felt the case for our unfortunate client who suffered a tragic string of errors during her treatment and in litigation.
She was an active woman in her sixties. And by active, I mean someone who hiked two to three times per week, frequently 15 miles each. Her hiking diary read like a “peaks of the Northwest” guidebook. She called us in mid 2018 following a near Keystone Cop-style series of events with her gastrointestinal clinic that led to discovery of colon cancer. She had first been diagnosed with colon cancer in early 2017, undergone a right hemicolectomy, chemotherapy, and radiation therapy, and appeared at the time to be recovering nicely. She wanted to know if she could have avoided some or all of her cancer treatment if she had been diagnosed earlier.
She sent us excerpts of her medical records. While nothing in the records screamed negligence, they raised enough questions that we felt we needed to do some digging.
She and her husband hired us, though we were weary that there may not be much of a damages case if she indeed remained in remission. The case appeared as a delay in diagnosis case of roughly six months. And anyone familiar with cancer cases knows that’s a tight window. It was our client’s story of her efforts to get a diagnosis over those six months that really piqued our interest.
How, though, had she ended up getting cancer in the first place? Well, the theme we quickly developed for the case was Tragedy of Errors. It seemed that everything that could have gone wrong for our client actually did.
First things first, though: our client and her husband were eminently likeable. She was a nurse, he an engineer by training. They had good jobs. They had been living comfortable middle class lives when they gave it all up: they left their careers to become missionaries in the south Pacific. For the better part of a decade at the beginning of the millennium they braved monsoons, armed robberies, and the local flora and fauna. They returned to the Seattle area about 10 years ago, but carried on their mission from afar.
Ok, enough about the good stuff in the case.
We got our client’s medical records and started piecing together a timeline. The relevant care started at her first colonoscopy in February 2015. For reasons never made clear to us – though she had a family history of colon polyps and she was a nurse – she waited until her 62nd year for her first colonoscopy. It has long been recommended that people get a screening colonoscopy at 50, though that number has recently dropped to 45. So, our client, a nurse, was either 10 or 15 years late getting started.
Lo and behold, our client’s assessment was not entirely clear. The endoscopist found an 18 mm flat polyp in her right ascending colon. This is considered a moderate sized polyp, and more concerning because it is flat to the surface of the colon. According to the operative note, the endoscopist “completely removed” it, though our client remembered he said the opposite. Somehow the tissue was never sent to pathology.
Our client returned in March 2016 for a follow-up. A different endoscopist performed the procedure and found a “difficult to remove” polyp at the same site as the previous “complete” removal. The polyp showed signs of puckering and it would not lift with a saline injection (both troubling signs for pre-cancerous changes to polyps). He partially removed the polyp and ablated the surrounding tissue. The pathology report identified the polyp as benign.
She tried to return for a follow-up appointment in July 2016. Through a misunderstanding, however, she did not have a ride home, so the procedure was canceled.
She did, though, return three months after that and another endoscopist (her third, now) noted the polyp was back again. Despite later professing mild concern for malignancy, the third endoscopist neither removed nor biopsied the polyp. His written explanation was fear of an explosion from the electrocautery (an exceedingly rare complication). During his deposition, though, he stated his primary concern was patient discomfort – he did not want to prolong the procedure another minute. He requested she return at the “next available spot” to complete the procedure under anesthesia.
What followed was five months of inability to connect with any schedulers at the clinic. Our client called and called, never once getting a live person at the other end of the line that could help her. The clinic occasionally called back, but she missed every call. By office policy, only a specific type of scheduler could get her appointment set up. And, to her, this person was becoming a ghost. She left voicemails. She sent messages via her electronic health record EHR portal. She called every number she could find but got nowhere. October turned into November, then the calendar rolled into December, then January. February came and nearly went before she was finally able to schedule an appointment. Even so, the “next available” appointment was still a month away. Then, for good measure, a week later the clinic canceled that appointment and rescheduled her for two weeks later than that.
So, “next available” had become six months later.
The appointment finally came. The flat polyp was again removed. The pathology report returned several days later with devastating news: adenocarcinoma. It was eventually staged as 3c.1 Things looked bleak.
Ten inches of her colon and 38 lymph nodes were removed two weeks later, and she immediately began chemo and radiation therapy. She powered through the difficult time and was given a promising prognosis at the end of 2017. She and her family breathed a sigh of relief.
She had no way of knowing, however, that the cancer had seeded metastatic spread to her lungs, her right humerus, and her left hip.
Her upbeat attitude took a devastating punch to the gut in late 2018. She contacted us to report that she had developed a cough that refused to go away. A workup revealed telltale signs of possible lung metastases. A lung biopsy confirmed that she had metastatic colonic adenocarcinoma in her lungs. She was told she had about a year left to live.
We filed suit against the clinic. Our initial theory of the case was a systems error on its part to allow our client’s follow-up colonoscopy on a mass suspicious for cancer to be delayed by nearly six months. Our second theory was the endoscopist’s failure to biopsy her polyp in October 2016. Both theories gave us a narrow causation window, but we forged ahead.
Given her terminal condition, we moved for an expedited trial under RCW 4.44.025. This is a powerful tool, and one we recommend anytime you have a client over 70 or with a terminal condition. It moves discovery along quickly. The court granted our motion; the discovery cutoff was suddenly seven months from filing.
The GI surgeons and pathologists we consulted started asking us questions that would give us a longer causation timeline. The experts voiced suspicions that our client’s cancer was in fact present in March 2016 and missed somehow by the pathologists.
Our first written discovery requests included requests for the original pathology slides. The clinic sat on them, initially trying to argue that the tissue was now the property of the clinic and they had no responsibility to provide their property absent a court order. Through discussion with defense counsel, we agreed to hold off on a motion to compel while he talked some sense into the clinic. It listened to reason, but we lost precious weeks in our shortened discovery calendar.
The slides finally arrived in our office, and then immediately began their remarkable cross-country journey. First, we forwarded them to our pathology expert on the East Coast. He returned an opinion a week later: the March 2016 tissue clearly showed evidence of adenocarcinoma. To call it anything other than that was an indefensible error. We were shocked.
Then the theme struck. An hour later, the doctor called to report that he just realized who the pathologist was. He had a professional relationship with him, and the expert could not in fact testify. Our bubbles collectively burst.
We then scrambled to find another pathologist expert. With a stroke of luck, Morgan Cartwright in our office found one in Texas on an expert service who agreed to review the slides. Critically, this expert did not know the defendant pathologist. Three days later we had an opinion, nearly identical to the first: the pathologist had missed obvious intramucosal adenocarcinoma.
We shared his opinions with defense counsel immediately. The response from the defense was to move for a continuance based on the new theory of negligence. The Court, of course, granted the motion.
Meanwhile, we sought to bolster our expert’s opinion with that of second expert witness.2 And the theme struck again. One by one, I reached out to pathologists around the country. Not a single one was willing to testify against the defendant. I started wondering if there was something wrong with me as rejection after rejection trickled in.
This disappointment, though, led to an epiphany: I needed to look outside the lines, so to speak. I was reminded of Tony Russo’s stories of finding an expert in the UK and Gene Moen’s going as far as South Africa to find an expert. My thinking about this case had become very uptight.
I started by reaching out to pathologists at medical schools around Canada. I got a positive response from a professor at McGill University in Montreal. The doctor said he would be happy to review the slides, and he did not know the defendant pathologist. We decided that even if he could not testify as to the standard of care, he would still be allowed to testify about what he was seeing on the tissue slides. The slides flew across the continent yet again. And, again, a week later we got a third report of intramucosal adenocarcimona. We were starting to feel upbeat.
Discovery clinches our new theory
Depositions started in the spring. The clients, of course, did well at their depositions. The three defendant gastroenterologists were equally friendly and warm. Any jury was going to like them and, we feared, give them the benefit of the doubt. The pathologist testified at his deposition that he saw no adenocarcinoma on the slides. Presented with images of the slides themselves, he denied any evidence of cancer, or any abnormalities indicating our client had cancer. In short, he stood by the benign report.
While we had expected a hindsight bias defense on the pathology,3 this came as a bit of a surprise. So, we prepared our experts and evidence for trial. It is always nice to have a “backup” theory; we had two back up theories: a biopsy should have been done in October 2016 (and would have shown early stage cancer), and a scheduling systems error allowed for metastatic spread of her cancer.
With our client, though, things took another turn for the worse. While sleeping one night she was shocked awake by the horrific sensation that her right arm had exploded. In unbelievable pain, her husband drove her to the emergency room. Remarkably, her right humerus had fractured spontaneously in her sleep. A biopsy showed colonic adenocarcinoma had compromised her bone. Metastases then appeared later in her left hip. Talk of a hip replacement started percolating. This fierce, independent woman was falling apart in front of her family’s eyes.
Things stayed strange through mediation
Following the deposition of the pathologist, the clinic threw out its first feeler for a mediation.
The strangeness of the case was not over, though. Our client’s two health insurers had liens totaling $540,000. The largest, a $415,000 lien, was a dreaded ERISA plan. And, in a first for our office, Rawlings insisted on being a third party at the mediation. In pre-mediation negotiations, we proposed a reimbursement scenario that Rawlings was ultimately willing to agree to – though they would not say as much until their Kentucky attorney was in Seattle at the mediation. Aside from that, Rawlings played no role in the negotiations.
Tom Harris mediated the case. By this time, the husband had taken a leave of absence to be his wife’s full-time caretaker. She was getting chemo once a month and targeted radiation therapy to treat the bony metastases.
We settled at mediation. Our client, who has a vaguely defined remaining life expectancy, has been given the opportunity to live out her remaining time with a little bit of breathing room. This is particularly poignant in light of the COVID-19 crisis. We recently received an email that she and her husband had returned from a cruise to Hawaii, following a week with friends in Mexico, itself following a cruise down the west coast through the Panama Canal and around the Caribbean. She would not have been able to do any of these things without an expedited trial and an early resolution. This vivacious woman, of endless energy, was incapable of walking several hundred yards in a stretch anymore, but she was refusing to let it slow her down.
Key to reaching a settlement were three critical components. First, our client and her husband were fantastic. Next, the expedited trial helped spur the case along and keep it on both parties’ front burners. Finally, focusing our claim on the systems error allowed us to reach a settlement without faulting four likeable doctors. They each exercised clinical judgment, and the “judgment call” defense can easily result in a defense verdict. A system that did not work well is much harder to defend. Our clients were grateful to get the case behind them and enjoy the last of their (so far) thirty-five years together.
Carl-Erich Kruse, EAGLE member, is an associate attorney at CMG Law (formerly known as Chemnick Moen Greenstreet) in Seattle, which limits its practice to medical malpractice cases. He is vice chair of the WSAJ Medical Negligence section and has been an EAGLE member since 2013.
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1 The tumor had grown through the surface of the visceral peritoneum surrounding the colon, and was present in local lymph nodes but no distant organs. Using the Tumor Node Metastases system, the cancer was staged pT4aN2b, meaning it penetrated through the visceral peritoneum, and metastases were found in seven or more regional lymph nodes, but not in distant organs.
2 While he was a capable expert witness, we wanted to find an expert that did not advertise his or her expert witness services.
3 E.g., “After learning there was a lawsuit, I took another look, and with the benefit of hindsight and reading what your experts said I now can see that someone could call that cancer.”
Publication Date: May 2020
Volume: 55-9
Author: Carl-Erich Kruse
Categories: Medical Negligence, Cancer, Expert Witnesses, Practice tips
