In this case, we represented the Estate of our deceased client, Nancy Cascella, who was a healthy, 64-year old employed woman when she died a tragic and unnecessary death.
This episode began when Mrs. Cascella’s PCP referred her for a colonoscopy after he diagnosed her with iron-deficiency anemia. The colonoscopy was performed by a gastroenterologist at XYZ Hospital.
Following the colonoscopy, two, rather than one, colonoscopy reports were generated with Mrs. Cascella’s name on it: a “correct report” and an “incorrect report.” The correct report set forth an accurate history and described a 5-millimeter mid-transverse polyp that required a follow-up colonoscopy in three months. The incorrect report was based on another patient’s medical condition and described an oozing bleeding mass in the cecum that required a right hemicolectomy surgery (removal of ½ of the colon).
The PCP received the incorrect report (describing an oozing mass in the cecum) along with the correct pathology report (describing a benign polyp in the transverse colon). Instead of questioning the vastly different reports, he instead negligently referred Mrs. Cascella to a surgeon for the unnecessary surgery.
The surgeon also had the incorrect report (describing an oozing mass in the cecum) along with the correct pathology report (describing a benign polyp in the transverse colon); however, like the PCP, failed to question the obvious discrepancy, and negligently proceeded to schedule the unnecessary right hemicolectomy on Mrs. Cascella a week later.
The gastroenterologist received both the correct and incorrect reports (but apparently failed to notice).
During the surgery, after he removed Mrs. Cascella’s right colon, the surgeon realized that he could not visualize the oozing cecal mass that he was looking for, so he sent the right colon that he removed to the pathology department, who also could not find anything. As a result, the surgeon called the gastroenterologist to the operating room and had him perform an intra-operative colonoscopy. During the intra-operative colonoscopy, it became apparent to everybody in the operating room that an error was made and that Mrs. Cascella was the wrong patient.
Interestingly enough, the surgeon and gastroenterologist both testified in their depositions that the thought of this being an error and/or Mrs. Cascella being the wrong patient never crossed their minds. However, a nurse present during the intra-operative colonoscopy testified that she specifically recalls the assistant surgeon holding up two reports, looking to the gastroenterologist, and asking him, “Which one of these is right?” Further, she remembered that the gastroenterologist did not know which one was right.
At this point, a circulating nurse began to fill out an incident report about a “discrepancy in the OR” with a narrative on the back that, oddly, had nothing to do with the events that took place during the surgery. What’s more, the circulating nurse testified that, at this point, she even realized that Mrs. Cascella had undergone a hemicolectomy to remove a mass and that no mass was present. She also testified that the gastroenterologist would not “justify” anything to her as a nurse and she expected some explanation for what she was witnessing.
Following the unnecessary surgery, instead of informing Mrs. Cascella and/or her family of this error (as required by statute), the gastroenterologist, the surgeon, and the Hospital fraudulently hid the evidence of the unnecessary surgery, intentionally misrepresented the purpose of the unnecessary surgery, and actually created false records to create the impression that the surgery which killed Mrs. Cascella was actually intended and necessary for her proper care.
Post-operatively, Mrs. Cascella developed respiratory distress that required transfer to an ICU and mechanical ventilation, and transfer to another medical facility, where she ultimately developed multi-organ failure and expired one month later, all due to complications caused by her unnecessary surgery.
As late as one year after the surgery, when Mrs. Cascella’s family retained Harry S. Cohen & Associates, the family was still confused as to why Mrs. Cascella, a healthy 64-year old, employed woman, underwent the operation that ultimately killed her, and certainly had no idea that the surgery was completely and totally unnecessary. In fact, prior to coming to our firm, the Cascella family had another well-respected law firm review the medical records; however, this law firm failed to catch this error. Luckily for the Cascella family, the medical staff at our firm was able to discover the fatal error.
On behalf of our client’s Estate, we brought suit against the PCP, the gastroenterologist, the surgeon, and the Hospital. The lawsuit was based on two separate and distinct causes of action: (1) a professional negligence action based on performing major surgery on the wrong patient; and (2) a fraud/intentional misrepresentation action based on the intentional cover-up of the unnecessary surgery and pointless death.
Through the pendency of the lawsuit, each Defendant denied liability and essentially claimed, “It wasn’t my fault.” After dozens of court appearances, twenty-one depositions, etc., one day prior to the scheduled trial, the case settled for a multi-million dollar sum with each party contributing to the settlement. Our client was survived by her husband, 3 adult children, and numerous grandchildren.