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Medical Malpractice Trial Hold Doctors Negligent for Late Cancer Diagnosis

Victor Lewin - Thursday, October 25, 2012

A very recent medical malpractice decision is important to Nova Scotia patients and medical malpractice lawyers in that it demonstrates an onus on doctors to deal with skin lesions, reasonably suspected as being cancerous, in a prompt and attentive manner. If the doctors fail to meet this standard of care, and the patient suffers a bad outcome, causation can be inferred, even in the absence of evidence.

The patient in Adams v. Taylor, 2012 ONSC 4208, developed a skin lesion in between her first and second toes on her left foot. She did the right thing. Over the course of approximately one year, she saw three doctors to address her concerns that the lesion may be cancerous.

Early on her family doctor referred her to a dermatologist. The dermatologist conducted a physical examination and concluded that the lesion was "probably benign" but that it was "better off than on". To perform the lesion removal, the doctor referred her to a plastic surgeon. An appointment was made for five months later.

When the patient's family doctor was advised of the surgery date, she became concerned and tried without success to find another plastic surgeon who could remove the lesion sooner. After several initial meetings with the plastic surgeon (who, like the dermatologist, showed no concerns that the lesion was anything but benign), the lesion was removed almost one year after the patient first complained to her family doctor. A subsequent biopsy revealed that the lesion was malignant cancer.

The patient underwent a surgical procedure to amputate two toes from her left foot followed by a lengthy and difficult chemotherapy protocol. She also had three lymph nodes removed from her groin, two of which were cancerous. She then had a full groin resection to clear the area of further metastases. She developed a staph infection and was hospitalized for a week. The groin resection resulted in a full leg lymphedema.

The patient hired a personal injury lawyer and commenced an action for damages against two of her doctors (the dermatologist and plastic surgeon) on the grounds that their diagnosis and treatment of her lesion fell below the standard of careexpected of them.

The doctors settled the question of damages before trial but were adamant that they had not treated the plaintiff in a negligent manner. The judge hearing the trial thought otherwise. Concerning the dermatologist's negligence, the trial judge concluded as follows:

After he had read (the family doctor's) letter of March 27, 2007 in which she described it as having irregular shape and colour, (the dermatologist) should have been particularly aware of the necessity to rule out melanoma. He should have arranged for excision and biopsy of the lesion on an urgent basis as this was the only sure method of ruling out melanoma.

...(the dermatologist) also failed to demonstrate the necessary standard of care by not adequately communicating his findings to either (the patient) or (the family doctor). Had he fully informed ...and had he insisted (the plastic surgeon) act urgently, the tragedy that has befallen (the patient) may have been averted.

The faulty record keeping has materially contributed to (the patient) adverse outcome. (The dermatologist's) negligence caused delay in excising the lesion...had the referral letter described the lesion with more detail and explained why (the dermatologist) did not think it was a melanoma, this might have shown (the plastic surgeon) that there was some difference of opinion. (The plastic surgeon) was not given the proper tools needed to assess the lesion.

(The dermatologist) exposed Ms. Adams to a risk of injury and she eventually suffered from that injury.

With regards to the plastic surgeon's negligence, the Court concluded as follows:

These "irregular" characteristics are clearly those of a possible melanoma. (The plastic surgeon) may have attributed the changes evidenced by the lesion breaking open, oozing clear liquid and then healing to (the patient's) running program. But change is also a clear indication of a melanoma. ...there was an obligation on her, as a specialist trained to recognize symptoms of a melanoma, having seen clear signs of a possible melanoma, to recognize it as such and remove it immediately.

The law provides that the honest exercise of judgment satisfies the professional obligation and is not negligent. However, if the error is one that a reasonable doctor practicing in the same discipline would not have made in similar circumstances, then the conduct falls below the standard of care is negligent...
...
I find that (the plastic surgeon's) conduct fell below the standard of care expected of a plastic surgeon in the circumstances of this matter. She failed to act after observing an irregular shape and colour in this lesion.
...
It is clear from the evidence of all the physicians at trial that the objective when dealing with melanoma is to recognize it early and to treat it, that is, excise it early. (The plastic surgeon) was negligent in leaving a growing dangerous lesion on (the patient's) skin, thus allowing it to develop into a melanoma, if it had not already done so.

In addition to claiming that they were not negligent, lawyers for the defendant doctors also argued that the patient could not provide that any of the doctor's conduct (or lack thereof) caused the patient's condition to worsen.

The trial judge did not accept this argument and inferred using common sense and reasonable logic that the doctors' negligence "caused the condition to become more serious". The judge stated: "It is logical that Ms. Adams' condition worsened as a result of not removing the lesion. There is no evidence to the contrary."

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