Court Reduces Cancer Malpractice Verdict: A Pennsylvania medical malpractice wrongful death lawsuit alleged that the decedent’s primary care physician failed to timely follow up on an abnormal PSA test that subsequently led to the diagnosis of metastatic stage IV prostate cancer two years later. Ten months after the prostate cancer diagnosis, the decedent was diagnosed with liver cancer caused by chronic untreated hepatitis C and cirrhosis. The decedent died 26 days later due to liver failure. His death certificate, which was issued one week later, listed liver cancer as the sole cause of death.
The jury determined that the defendants’ medical negligence in timely diagnosing the decedent’s prostate cancer caused his death and awarded compensatory damages in the amount of $1,500,000 for the prostate cancer and $1,200,000 for the liver cancer. The defendants appealed.
The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) vacated the jury’s award for the liver cancer, stating: “As Decedent was diagnosed with liver cancer on July 5, 2018, the statute of limitations applicable to a survival claim based on Decedent’s liver cancer would have expired on July 5, 2020. Similarly, because Decedent died on July
31, 2018, the statute of limitations applicable to a wrongful death claim based on Decedent’s liver cancer would have expired, at the latest, on July 31, 2020. At no point prior to those statutory expiration dates did Appellee seek to amend her first amended complaint to add: a new cause of action based on Dr. Pisano’s negligence with respect to Decedent’s liver health between 2010 and 2014; a summary of the material facts supporting such a claim; or a prayer for relief pertaining to Decedent’s diagnosis of and death from liver cancer.”
“[T]he cause of action set forth in the first amended complaint pertaining to Dr. Pisano’s treatment of Decedent’s
prostate following his elevated and abnormal PSA test levels in 2015, required medical records and testing from 2015 through 2017, and the expert reports and opinion testimony of a urologist. On the other hand, Dr. Wu’s theory pertaining to Dr. Pisano’s treatment of Decedent’s liver required medical records and testing from 2010 through 2014 and the expert reports and opinion testimony of a hepatologist. Given these differences, we conclude that a material variance occurred because the proof presented at trial, consisting of Dr. Wu’s reports and testimony, established a cause of action regarding Dr. Pisano’s treatment of Decedent’s liver that was not alleged in the first amended complaint.”
“Because this material variance occurred after the applicable statutes of limitation expired, the trial court erred as a matter of law by permitting Appellee to present the expert reports and testimony of Dr. Wu, which raised a new cause of action that was time-barred. We must therefore vacate the portion of the jury’s verdict which finds in favor of Appellee on the liver cancer cause of action and awards compensatory damages on that cause of action.”
Source Kersey v. Pisano, J-A24032-22.
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