Having been a physician assistant in Arizona for several years before moving north, Mr. G had considerable experience in diagnosing skin lesions. One of his patients was a 51-year-old factory worker. At his annual exam, he presented with a raised, pigmented skin lesion on the right side of his back. Mr. G believed it was either a stable pigmented nevus or an early malignant melanoma. He thought there was some hyperpigmentation deep in the lesion, but he was not sure. There was no enlargement of the axillary lymph nodes as far as he could tell. In any case, Mr. G felt the patient’s lesion should be reviewed by his supervising physician and, if necessary, referred for excision biopsy to a dermatologist.
After examining the lesion, the supervising physician agreed with Mr. G’s assessment. The patient was sent to a general surgeon, who removed the lesion with a small margin of skin and sent it to pathology. The pathologist was inexperienced in the diagnosis of malignant melanoma and mistakenly declared the sample benign. (Later review showed the sample to have early invasion of the subdermal layer, indicating a malignant lesion.) The erroneous report was forwarded to Mr. G and the patient. Mr. G was surprised at the finding but relieved that the skin mass was benign. He did not give the case another thought until four years later when the patient arrived with an axillary lump he discovered while in the shower. A lymph node biopsy showed metastatic malignant melanoma. Further studies indicated that the metastases were spread all over the body, including the brain and lungs.
Facing staggering medical bills, the patient and father of two consulted a plaintiff’s lawyer, who called for the chart from the pathologist, Mr. G, and his supervising physician. A review of the slides taken by the original pathologist revealed that he had made a mistake—the slides showed early invasion by the cancer. The pathologist maintained, and continued to insist throughout the case, that the early invasion was vascular; therefore wide excision would not have altered the outcome. A plaintiff’s expert examined the patient’s records and concluded that the early diagnosis would have allowed for wide re-excision of the original lesion and a greater chance of cure. Upon receiving the expert’s report, the plaintiff’s lawyer filed a malpractice suit against the pathologist, the laboratory that had prepared the slides, and Mr. G and his supervising physician for failure to properly manage and treat the patient.
The pathology lab immediately applied for dismissal of the case, arguing that it had processed the slide correctly. (The pathologist eventually admitted negligence in reading a properly prepared slide.) After considering all the factors (including the generous malpractice insurance policy carried by the pathologist), the plaintiff’s lawyer offered no opposition, and the judge dismissed the lab from the lawsuit. The remaining defendants worked their way through the discovery process, and the case eventually went to trial.
At trial, the experts testifying on behalf of the plaintiff offered a poor prognosis (the patient died shortly after the trial was over). Near the end of the plaintiff’s testimony, Mr. G and his supervising physician applied for dismissal due to lack of evidence against them, and the judge granted their motion. The pathologist was the only defendant left. He admitted that he had misread the slide but insisted that this mistake had not killed the patient, since his fate was already sealed at the time of biopsy (vascular invasion meant that secondary cancers would sooner or later appear in distant parts of the body). The jurors listened to the summaries from each lawyer and retired to deliberate. One hour later, the jury submitted a question as to allowable awards for pain and suffering. The pathologist’s lawyer panicked immediately. He was convinced that the jury was considering a megaverdict and persuaded the insurance company to offer $1 million to settle the case. The shrewd plaintiff’s lawyer refused to settle. Instead, he offered to enter into a high/low agreement, which the insurance company accepted. If the case was decided in favor of the plaintiff, he would collect a maximum of $3.75 million. If the plaintiff lost, he would collect a minimum of $750,000. Four hours later, the jury returned with a verdict for $5.175 million.