LOUIS MCFEELEY, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF KATHLEEN MCFEELEY, DEC. Appellant
SUSHRUT SHAH, M.D., MPH, DIAGNOSTIC IMAGING, INC.
from the Judgment Entered September 21, 2017 In the Court of
Common Pleas of Philadelphia County Civil Division at No(s):
October Term, 2014, No. 000331
BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.
Louis McFeeley, individually and as administrator of the
estate of his wife, Kathleen McFeeley ("the
Decedent"), appeals from the entry of judgment in favor
of Appellees Sushrut Shah, M.D., MPH ("Dr. Shah")
and Diagnostic Imaging, Inc. ("Diagnostic
Imaging"). After a careful review, we affirm.
relevant facts and procedural history are as follows: On
October 7, 2014, Appellant filed a civil complaint against
Appellees averring that, on April 26, 2012, the Decedent
presented to her primary care physician with complaints of
pain in her stomach/abdomen. The primary care physician
referred the Decedent to a colorectal surgeon, Robin
Rosenberg, M.D., who ordered various tests, including an
abdominal/pelvic computed tomography scan ("CT
scan"). On May 3, 2012, the Decedent underwent the CT
scan at the Aria Health outpatient clinic in Philadelphia;
Dr. Shah, who was employed by Diagnostic Imaging, reviewed
the CT scan.
alleged the CT scan revealed multiple mass lesions along the
Decedent's left anterior lower abdomen and upper pelvis.
Appellant further averred the lesions were "indicative
of metastatic disease until proven otherwise."
Appellant's Complaint, filed 10/7/14, at 6. However,
Appellant contended Dr. Shah's CT scan report failed to
mention the presence of the multiple lesions, and,
consequently, Dr. Shah "failed to detect or appreciate
the presence of these abnormalities in his review and
interpretation of the CT scan images." Id.
alleged the Decedent's abdominal pain continued, and on
December 10, 2012, she was examined again by Dr. Rosenberg,
who ordered a series of X-rays, which revealed "slight
abnormalities in the right lung[.]" Id. at 7.
The Decedent began to experience shortness of breath, and on
December 12, 2012, she went to Aria Health-Torresdale
Hospital's emergency room. An initial CT scan revealed
"abnormal nodules along the diaphragm, [which is a
concern] for malignancy, and abdominal ascites in the upper
abdomen, [which is a concern] for peritoneal
carcinomatosis." Id. It was recommended that
the Decedent follow-up with abdominal/pelvic CT scans.
averred that, on December 14, 2012, the Decedent underwent an
abdominal/pelvic CT scan at Aria Health-Torresdale Hospital.
This CT scan revealed "abdominal and pelvic ascites,
ill-defined nodular soft tissue densities along anterior
aspects of the left hemi-abdomen, suggesting peritoneal
and/or omental tumors." Id. On December 19,
2012, the Decedent followed-up with Enrique Hernandez, M.D.,
a gynecologist oncologist at the Temple University Hospital,
who found the Decedent had a "15-18 cm mass in the left
lower quadrant of the abdomen[.]" Id. He
diagnosed the Decedent as suffering from Stage IV ovarian
cancer, and he recommended a full hysterectomy.
December 26, 2012, the Decedent underwent the planned
surgery; however, because of extensive tumors, Dr. Hernandez
was unable to perform the hysterectomy, but he performed
"suboptimal debulking of the tumor."Id. at 8.
Appellant contended the Decedent was discharged from the
Temple University Hospital on January 1, 2013, with plans to
undergo chemotherapy; however, after developing various
symptoms, she returned to the Temple University Hospital on
January 5, 2013, with a confirmed small bowel obstruction.
surgery to repair the bowel obstruction, the Decedent
developed peritonitis and septicemia, and on January 14,
2013, she died while in the Temple University Hospital.
Appellant averred the "cause of death was
cardiopulmonary arrest from sepsis caused by the bowel
perforation, related to Stage IV ovarian cancer."
Id. at 9.
alleged the success of chemotherapy with ovarian cancer is
dependent on the successful debulking of the tumor, and if
the tumor can be only suboptimally debulked the likelihood of
successful cancer treatment is decreased. Id.
Accordingly, Appellant contended that a correct
interpretation of the CT scan on May 3, 2012, by Dr. Shah
would have resulted in a prompt referral to a gynecologist
oncologist, as well as an optimal debulking of the tumor such
that chemotherapy could be administered with "a
significant chance for long-term survival." Id.
Appellant asserted the delay resulted in enlarged and
Appellant alleged "[t]he delay in diagnosis and
treatment of the carcinoma from May 2012 until early January
2013 increased the likelihood of a complication such as bowel
perforation and sepsis." Id. at 10.
Accordingly, "the delay in diagnosis and treatment from
May 2012 to late December 2012/early January 2013, increased
the risk of harm to [the Decedent]." Id. As
such, Appellant presented survival claims on the
Decedent's behalf and wrongful death claims on his and his
son's behalf alleging professional medical negligence
November 18, 2014, Appellees filed an answer with new matter
to Appellant's complaint, and on November 24, 2014,
Appellant filed a reply to the new matter. Moreover,
Appellant filed various motions in limine, including
a motion to preclude certain causation testimony from defense
expert Seth Glick, M.D. By order entered on April 24, 2017,
the trial court denied Appellant's motion in
limine as to Dr. Glick; however, the trial court noted
Dr. Glick's testimony would be limited to the four
corners of his expert report.
ensuing jury trial, Appellant presented the testimony of
various witnesses. Specifically, Dr. Rosenberg relevantly
testified that he ordered the Decedent to undergo a CT scan,
which was performed on May 3, 2012, and he received a report
from Dr. Shah. N.T., 4/24/17, at 88. He indicated the CT scan
was reported by Dr. Shah as "completely negative"
and "all visualized pelvic structures [were]
unremarkable." Id. He noted that "[w]e now
know in retrospect that all the pelvic structures actually
weren't seen, but that wasn't detailed in the
Rosenberg testified that, at this point, he had no reason to
believe the Decedent was suffering from ovarian cancer.
Id. at 93. Dr. Rosenberg testified that in December
of 2012, with her condition worsening, the Decedent went to
the Temple University Hospital where she underwent surgery
for ovarian cancer, and she sustained a perforated colon.
Id. at 98-99.
Aaron Cousin, M.D., a diagnostic radiologist offered as an
expert by Appellant, testified he reviewed the May 3, 2012,
CT scan and "there were some findings which were not
described in [Dr. Shah's] report." Id. at
160. Specifically, Dr. Cousin noted the CT scan revealed the
Decedent had "omental lesions, " which are
indicative of cancer, but such findings were not documented
on Dr. Shah's report. Id. at 161. He noted the
reasonable standard of care for a radiologist is to describe
such findings on the report. Id. at 163. He
specifically opined that Dr. Shah breached the reasonable
standard of care by failing to report such findings with
regard to the May 3, 2012, CT scan. Id. at 188.
Dr. Cousin testified that a comparison of the CT scans from
May 3, 2012, and December 14, 2012, revealed
"significant worsening of the disease."
Id. at 164, 194. He indicated "her disease
[had] spread" with new and/or larger lesions appearing
in the December 14, 2012, CT scan. Id. at 176. Dr.
Cousin admitted, however, that as of May 3, 2012, there was
evidence that the Decedent's cancer had already
metastasized. Id. at 204.
Shah was called by Appellant as on cross-examination. Dr.
Shah admitted he reviewed the Decedent's May 3, 2012, CT
scan, and it was his duty to report anything "suspicious
and abnormal" appearing on the scan. N.T., 4/25/17, at
19. He also admitted it is his duty to report lesions
appearing on the omentum. Id. at 28-29.
Shah confirmed he did not report seeing any omental lesions
on the Decedent's May 3, 2012, CT scan; however, he
testified he was unable to remember whether he actually saw
or did not see the omental lesions when he reviewed the
Decedent's May 3, 2012, CT scan. Id. at 30. Upon
reviewing the CT scan in court, Dr. Shah admitted there were
at least two areas on the CT scan which could be omental
lesions. Id. at 41-42.
Hopkins, M.D., a gynecologist oncologist offered as an expert
by Appellant, explained that a staging system is used with
regard to cancer in order to give a prognosis as to a
patient's chances of surviving the cancer. Id.
at 70. He explained that Stage III-A is when there is no
disease visible to the eye; Stage III-B is when the cancer is
less than 2 centimeters; and Stage III-C is beyond 2
centimeters. Id. He opined that, based on the
lesions appearing on the Decedent's May 3, 2012, CT scan,
she was in Stage III-C of ovarian cancer at this time.
Hopkins testified that with a Stage III-C cancer the
treatment is to attempt to remove as much of the visible
cancerous tissue as possible through surgery and then
chemotherapy is used. Id. Dr. Hopkins opined
chemotherapy is more effective if less disease is left behind
after surgery. Id. In this respect, he testified as
Q. With respect to Stage III-C treatment, tell us what is the
likelihood of success of getting debulking considering that
stage in the surgery.
A. If we are able to what we call optimally debulk or get it
down to less than a centimeter to no visible disease, the
chances of living five years falls in the range of 40 to 50
percent. If we leave quite a bit of disease behind, then they
fall to 20 percent.
Q. Doctor, do you have an opinion to a reasonable degree of
medical certainty whether if this cancer was diagnosed in May
of 2012, what type of-whether the success rate or the
likelihood that the Decedent could have received an optimal
A. I think she probably would have, given the CT findings.
Q. Tell us why you say that?
A. That was the only thing they saw. Oftentimes we see, when
we can't get it all out, we see many more findings on CT
scan[s]. We see the fluid build-up, many other nodules and
bits of tumor in the abdomen. So that CT scanning would have
been pretty favorable to go in expecting to get an optimal
resection on that.
Q. So if [the Decedent] was your patient and she came to you,
you would have felt pretty confident that you could have
gotten a success of removing the cancer?
A. I would have expected to.
Q. Doctor, let's talk about [the Decedent] developing a
perforation after the surgery in December of 2012. Now, do
you have an opinion to a reasonable degree of medical
certainty whether if the cancer was diagnosed in May of 2012,
whether a complication such as a perforation would have been
decreased or less?
A. Yes, it would have been a far easier surgery.
Q. And, Doctor, you talked about [a patient's] chance of
living at a Stage III-C level. Talk to the Jury about [a
patient's] chance of living after an optimal debulking
and the chemotherapy?
A. We usually quote the patient somewhere in the 40 to 50
percent chance they'll be alive in five years with no
Q. And that doesn't mean--does that mean that they could
live longer than five years, too?
Q. You have patients with III-C who have gone through that
surgery and the chemo that live longer?
A. I still see some in the office 25, 30 years later, so yes.
Q. Now, fast forward to me or let's move forward seven
months later to December of 2012. At that point in time, what
was the stage of [the Decedent's] cancer?
A. At that time she was Stage IV.
Q. Doctor explain to the Jury the difference between Stage
III-C and Stage IV cancer.
A. Again, we use it as a predictor. Stage IV is when we have
liver metastases or what's called a pleural effusion
where the fluid is up around the lung and it's above the
diaphragm. When we find that, then the chances of living drop
down in the five to 10 percent range.
Q. At III-C, they're 40 to 50 percent. At IV, they're
five to 10 percent?
Id. at 71-76.
Hopkins testified that Dr. Hernandez perforated the
Decedent's bowel during surgery; however, he opined this
did not constitute negligence as such a complication is an
acceptable risk of the procedure. Id. at 83. Dr.
Hopkins opined the surgery performed in December by Dr.
Hernandez was more difficult than the surgery would have been
if it were performed in May. Id. In this regard, he
indicated that the fact the Decedent's cancer progressed
from Stage III-C to Stage IV from May to December resulted in
an "exceedingly more difficult [surgery] leading
to…the ultimate perforation and then her death."
Id. at 89.
cross-examination, Dr. Hopkins admitted that, as of May 3,
2012, the Decedent's cancer was already metastatic, and
the American Cancer Society's published survival rates
for cancer at Stage III-C is 39 percent. Id. at
95-96. He acknowledged the American Cancer Society's
published survival rates for cancer at Stage IV, which is the
stage of the Decedent's cancer in December of 2012, was
17 percent. Id. at 97.
admitted that all surgeries have risks and, even if the
Decedent underwent the debulking surgery in May, as opposed
to December, the surgery could have been "quite
difficult." Id. at 99. He acknowledged that Dr.
Hernandez indicated in his report that the area where the
Decedent's bowel perforation occurred was not in the area
where he performed the surgery. Id. at 109.
opposition to Appellant's claim, Appellees offered the
testimony of numerous witnesses. Specifically, Dr. Shah
admitted the May 3, 2012, CT scan was not a
"normal" CT scan; however, he indicated that he
noted on the report the thickening of the Decedent's
colon, which he viewed on the CT scan. N.T., 4/26/17, at
49. Dr. Shah testified he did not report the Decedent's
omental lesions because "they're not uncommon and we
basically don't report them unless there's some
secondary information such as fluid in the belly [or a known
patient or family history of some disease]."
Id. at 51-52. Dr. Shah indicated he typically
reports only the "highlights" of the CT scan as a
doctor does not want to receive a twenty page report.
Id. at 52. Dr. Shah testified that based on the
information provided to him he "rendered an accurate
report" of the Decedent's May 3, 2012, CT scan.
Id. at 53.
cross-examination, Dr. Shah testified he cannot specifically
recall whether at the time he reviewed and reported the
Decedent's May 3, 2012, CT scan he noticed the omental
lesions. Id. at 54. In any event, Dr. Shah testified
that even if he had noticed the omental lesions he
"wouldn't necessarily [have] report[ed] them because
they are not uncommon findings[.]" Id. at 55.
However, upon further questioning, he admitted that if he
noticed an omental lesion, which could potentially be cancer,
it was his "job to report it[.]" Id. at
Glick, M.D., a diagnostic radiologist offered as an expert by
Appellees,  opined to a reasonable degree of medical
certainty that Dr. Shah used the same care as other
radiologists in his interpretation of the May 3, 2012, CT
scan. Id. at 88. He noted Dr. Shah properly reported
thickening of the Decedent's colon. Id. at 89.
Dr. Glick specifically disagreed with Dr. Cousin's
opinion that Dr. Shah should have reported the omental
lesions. Id. at 89-90. In this regard, he noted
there were "some vague densities in the omentum, which
we see commonly in many CT scans. Those are not changes that
we report because if we report in so many people, you'd
be sending everybody for more tests." Id. at
Glick disagreed with Dr. Cousin's opinion that the
"subtle patchy densities in the omentum" would have
offered a reasonable explanation for the Decedent's
reported pain. Id. at 91. Dr. Glick concluded there
was nothing visible in the May 3, 2012, CT scan which should
have been reported ...