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McFeeley v. Shah

Superior Court of Pennsylvania

January 8, 2020


          Appeal 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. [*]


          STEVENS, P.J.E.

         Appellant 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").[1] After a careful review, we affirm.

         The 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.

         Appellant 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.

         Appellant 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.

         Appellant 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.

         On 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."[2]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.

         Despite 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.

         Appellant 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 extensive tumors.

         Further, 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[3] and wrongful death claims on his and his son's behalf[4] alleging professional medical negligence against Appellees.[5]

         On 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.

         At the 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 report." Id.

         Dr. 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.

         Daniel 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, "[6] 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.

         Moreover, 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.

         Dr. 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.

         Dr. 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.

         Michael 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. Id.

         Dr. 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 follows:

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 debulking surgery?
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 cancer.
Q. And that doesn't mean--does that mean that they could live longer than five years, too?
A. Correct.
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?
A. Yes.

Id. at 71-76.

         Dr. 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.

         On 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.

         He also 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.

         In 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.[7] 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.

         On 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 61.

         Seth Glick, M.D., a diagnostic radiologist offered as an expert by Appellees, [8] 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 90.

         Dr. 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 ...

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