Court Affirms Plaintiff Failed to Show Compensable Damages in Cancer Case: On May 26, 2015, Mr. Dean, age 54, presented at the Garrett County Memorial Hospital’s emergency room complaining of abdominal pain, back pain, and nausea. The emergency room physicians performed several diagnostic procedures, including imaging of Mr. Dean’s abdomen. Those images were later reviewed by Dr. Magal. After Dr. Magal concluded that Mr. Dean’s imaging revealed no notable abnormalities, Mr. Dean was discharged with a diagnosis of pancreatitis. On November 7, 2015, Mr. Dean again went to the emergency room complaining of abdominal pain, and additional images of his abdomen were taken. Upon reviewing those images, the treating physicians discovered a “3.5 cm pancreatic body mass,” and Mr. Dean was diagnosed with advanced pancreatic cancer. On December 27, 2015, Mr. Dean died of pancreatic cancer.
In 2019, Mr. Dean’s mother, Ms. Wolff, acting individually and as the personal representative of Mr. Dean’s estate, filed a complaint against Dr. Magal and his radiology practice, Allegany Imaging, P.C. Ms. Wolff’s complaint set forth two causes of action, which were titled “Count I – Negligence (Survival Action)” and “Count II – Wrongful Death.” Under the first count (the “Survival Action”), Ms. Wolff alleged that, when Mr. Dean presented to the hospital in May 2015, he was not simply suffering from pancreatitis, as diagnosed by Dr. Magal, but rather had a “1.7 cm low density lesion in the body of the pancreas.” Ms. Wolff alleged that Dr. Magal breached the standard of care in failing to recognize and diagnose the lesion as pancreatic cancer. Ms. Wolff alleged that, had Dr. Magal properly diagnosed the mass, Mr. Dean would have received appropriate treatment, such that it was “more likely than not that he would have survived.” Ms. Wolff alleged that, as a result of Dr. Magal’s negligence, Mr. Dean suffered damages including: severe physical pain; being robbed of the opportunity for proper treatment; being robbed of time to spend with his family; emotional pain and suffering upon being told in November 2015 that he had cancer; and losing the chance of treatment and survival.
Under the second count (the “Wrongful Death” action), Ms. Wolff alleged that Dr. Magal’s negligence caused the death of Mr. Dean and resulted in various damages. Ms. Wolff also alleged, as she did in the Survival Action, that Dr. Magal’s negligence caused “the loss of chance of survival” for Mr. Dean.
The Court of Special Appeals of Maryland (“Maryland Appellate Court”) stated in its unreported opinion dated June 23, 2022, “we hold that the circuit court correctly found that there was no evidence that Mr. Dean suffered any recoverable harm as a result of Appellees’ alleged negligence. To be sure, the above case law makes clear that, in theory, Ms. Wolff could have recovered damages if she was able show that Appellees’ alleged negligence caused Mr. Dean “emotional distress” or “mental suffering from knowledge of a shortened life expectancy.” The problem with Ms. Wolff’s claims, and the reason that those claims were legally insufficient to overcome a motion for summary judgment, is that she presented no evidence establishing that Mr. Dean’s emotional distress resulted in an injury capable of objective determination.”
The Maryland Appellate Court further stated: “Ms. Wolff also argues that Mr. Dean endured conscious pain and suffering from the knowledge that Appellees’ alleged negligence deprived him of various opportunities, such as the opportunity to know the truth of his health, to get his affairs in order, and to spend more time with his children. We remain unpersuaded. Those “deprivation” claims suffer from the same deficiency as her other claims for emotional distress, in that there is no evidence that the “deprivation” caused emotional distress and resulted in an injury capable of objective determination. Furthermore, even if we accepted Ms. Wolff’s deprivation claims at face value, those claims would still fail because they are essentially “loss of chance” claims, which, as noted, are not recognized in Maryland.”
Source Wolff v. Magal, M.D., No. 819 September Term, 2021.
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