On December 28, 2020, a federal judge ruled against the U.S. and in favor of a 76-year-old former Marine who had served in Vietnam in his medical malpractice lawsuit that alleged that a CT scan of his neck performed at the Buffalo VA Medical Center in September 2013 was misread as normal and the radiologist failed to note the mass in his neck that he complained about to his primary care doctor. The primary care doctor wrote in her note, “Good news. No evidence of a … tumor that will require biopsy.”
In April 2015, the plaintiff saw his primary care doctor, complaining about “a growth on the left side of my face which seems to be growing fast.” The doctor ordered another CT scan that led to a biopsy being performed by an ENT at the Buffalo VA Medical Center. That biopsy led to the diagnosis of squamous cell carcinoma that was later determined to have originated in his left tonsil. The radiologist who read the 2015 CT scan noted that the radiologist’s report from the 2013 CT scan did not discuss the mass.
The plaintiff was required to undergo seven cycles of weekly intravenous chemotherapy treatments and forty radiation treatments, which were completed in August 2015. The plaintiff then had to have a radical tonsillectomy and a modified left neck dissection when his cancer returned in January 2017.
The plaintiff told the federal judge hearing his FTCA case, “They were doctors. I took their word. They said there wasn’t anything to worry about. I think about it every day. If they had caught this thing early, it’s a 93% cure rate. Now they tell me I have a 50/50 chance of it coming back. Every time I get a pain somewhere, I wonder what it is. Is it coming back?”
The judge stated in her written opinion that it was undisputed that enlargement of the plaintiff’s left cervical lymph node was clearly visible on the September 2013 CT scan, but it was not identified and not acted upon when it should have been, which delayed the diagnosis and treatment of the plaintiff’s throat cancer by 20 months.
The government disputed, however, whether the 20-month delay caused the recurrence of the plaintiff’s throat cancer necessitating the surgery in 2017. An expert called by the government testified during trial that the plaintiff had an 80% to 85% chance of survival had the diagnosis been made in September 2013, and that his chance of survival remains the same.
The plaintiff’s lawyer argued in his closing, “Isn’t it something that the government could not find a single head-and-neck oncologist to support its defense that a 20-month – 20 months! – delay didn’t matter? No, it isn’t. Because early detection saves lives. Early treatment saves lives. No medical literature … states that a 20-month delay doesn’t matter.”
The judge sided with the plaintiff’s expert’s opinion that the delay between September 2013, when the plaintiff could have been diagnosed with squamous cell carcinoma, and May 2015, when he was finally diagnosed with cancer, caused the 2017 recurrence of his cancer. The judge noted the plaintiff’s expert’s testimony that the enlargement of a lymph node, which nearly doubled in size during the delay in diagnosis and treatment, showed that the plaintiff’s cancer progressed, and that the number of cancer cells increased during the 20-month delay (the plaintiff’s medical expert testified that the plaintiff’s recurrence happened in the area where he had received radiation treatment, which showed evidence of treatment-resistant cells).
The federal judge wrote in her opinion, “Based on these opinions, the court finds that it is more likely that Mr. Culhane will have another recurrence because he has already had a recurrence. Further, the court finds that if Mr. Culhane does have a second recurrence, it would increase the chances of him dying as a result of the cancer.”
The federal judge awarded the plaintiff and his wife $1.95 million in compensatory damages, which was mostly for noneconomic damages.
If you or a loved one suffered harm as a result of medical malpractice involving a VA medical facility, you should promptly find a federal medical malpractice lawyer (Federal Tort Claims Act lawyer) who may investigate your VA medical malpractice claim for you and represent you or your loved one in a Federal Tort Claims Act medical malpractice case, if appropriate.
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