On August 19, 2013, the United States Court of Appeals for the Tenth Circuit (“Appellate Court”) upheld a medical malpractice verdict in the amount of $153,000 that a federal jury in Kansas had awarded the plaintiff in her medical malpractice lawsuit filed against a surgeon who was supposed to completely remove the plaintiff’s cancerous thyroid but failed to do so. The medical malpractice defendant alleged that he performed a “total thyroidectomy” on the plaintiff on May 17, 2007, as referenced in the pathology report in which the surgeon claimed that he had removed the entire thyroid gland as well as a single mass that proved to be cancer.
The plaintiff had been diagnosed with papillary carcinoma (a type of thyroid cancer). A CT scan and an ultrasound-guided fine needle biopsy confirmed two masses in the plaintiff’s neck, with one measuring 2 cm x 2 cm x 2 cm emanating from the bottom left lobe of her thyroid and an additional smaller mass within the thyroid itself. The needle biopsy confirmed that the larger mass was cancerous.
Despite her surgeon’s assurances that he had removed her entire thyroid gland, the woman was able to feel a lump in her neck. On her follow-up visit with her surgeon twelve days after the surgery, she complained to her surgeon that she could feel a lump in her neck and she also complained of fatigue. The surgeon assured her that her symptoms were normal post-operative symptoms.
When her symptoms continued, she telephoned the surgeon during June 2007 and again told him about her lump in her neck and her symptoms of fatigue, hoarseness, and problems with swallowing and breathing. Again, the surgeon assured her that her symptoms were normal post-operative symptoms and that she was fine.
On June 21, 2007, the plaintiff met with the surgeon in his office, reiterated her symptoms and complaints, and requested that her neck be scanned, which the surgeon refused to order. The following day, the plaintiff arranged on her own to have a scan of her neck that showed that there was still a mass in her neck and that her lymph nodes may be cancerous.
The plaintiff arranged a consultation with another surgeon who subsequently performed surgery on her on July 17, 2007. The subsequent surgery was described as a “completion thyroidectomy,” neck dissection, and paratracheal lymph node dissection during which a “thyroid mass” measuring 4 cm x 2 cm x 1.1 cm was removed along with “suspicious lymph nodes.”
The plaintiff subsequently filed a medical negligence lawsuit against the first surgeon. The trial judge instructed the jury, “The plaintiff …. claims that she sustained injuries and damages due to the fault of the defendant …. in the following respects: during the May 17, 2007 surgery by  failing to remove all thyroid tissue, including a cancerous mass,  failing to remove lymph nodes,  failing to timely review the May 18, 2007 pathology report and  failing to consider plaintiff’s post-surgical symptoms.” The defendant objected to the instruction on the basis that the last three fault contentions were not supported by sufficient evidence but he did not object to the first contention – that he failed to remove all thyroid tissue.
The defendant surgeon appealed the jury’s verdict against him and claimed that the jury instruction was erroneous, alleging that it lacked support by expert witness testimony as required by Kansas medical malpractice law for the last three contentions but he did not contest that there was sufficient evidence to support the first contention (that he negligently failed to remove all thyroid tissue, including a cancerous mass).
The Appellate Court noted that the plaintiff had proceeded under a single theory of liability (medical negligence) and had advanced four factual contentions as possible bases for finding the defendant surgeon liable under this legal theory. The Appellate Court held that the defendant surgeon had “waived his opportunity to challenge the sufficiency of the evidence supporting these other three factual contentions by not seeking a special verdict …. Because [the defendant surgeon] did not request a special verdict to indicate which factual theory or theories the jury based its verdict on, we are unable to conclude that the jury rested its decision on one of the three allegedly insufficiently supported factual theories.” The Appellate Court therefore affirmed the jury’s verdict, which included $15,000 in medical expenses, $13,000 for economic loss, and $125,000 for noneconomic loss.
Source Jennifer Pratt v. Joseph Petelin, M.D., Case No. 11-3282.
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