Delay in Diagnosing Liver Cancer - Kelvey

The Kelvey Case

Summary:

This case is about a liver doctor who was treating a patient who was at a high risk for liver cancer. Since the patient was at high risk for liver cancer, good medicine required the doctor to monitor his patient for early detection of liver cancer. For 2½ years, the liver doctor treated the patient; yet, he chose not to review all of the tests done on the patient’s liver and chose not to monitor the patient for early detection of liver cancer.

Roughly one year after the doctor discharged the patient from his care, the patient was diagnosed with advanced liver cancer. The tumor was described by his doctors as “giant” and “enormous” and was the size of a pineapple. It was so large and so advanced that his doctors could not operate on it. The liver cancer was present and growing while the liver doctor was treating the patient, who was at risk for liver cancer, for liver disease. Despite chemotherapy and other aggressive treatment, nothing more could be done. Due to the doctor’s negligence, the patient’s death was imminent. The patient was 62, married, and a recently retired executive chef.

Facts:

After Mr. Kelvin began getting blisters on his skin in heavy sunlight, he treated with a dermatologist and was diagnosed with porphyria cutanea tarda (“PCT”), a benign blood disorder caused by excess iron in the liver. His PCP then ordered liver function tests which revealed that he had liver disease. The PCP referred Mr. Kelvin to a gastroenterologist/hepatologist (liver doctor) to treat the liver disease and a hematologist (blood doctor) to treat the PCT.

As instructed, the patient saw the liver doctor (the Defendant “Liver Specialist”) who ordered tests to confirm that the patient had chronic Hepatitis C (unbeknownst to the patient from a blood transfusions from an earlier hernia surgery) and scheduled the patient to come back in two months to discuss treatment options.

In the meantime, the patient also saw the hematologist (blood doctor) who referred the patient to a different liver specialist at UPMC in Oakland. The UPMC liver specialist ordered bloodwork, a liver biopsy, a CT scan, and additional testing to get a complete picture of the patient’s liver disease and rule out other potential causes of the liver disease. One concern was whether the patient had cirrhosis which would have placed the patient at a high risk for liver cancer.

The liver biopsy revealed that the patient had advanced fibrosis (stage 2-3 with stage 4 being cirrhosis) and a somewhat fatty liver. The CT scan revealed that the patient had “surface nodularity that was equivocal for cirrhosis.”

After the patient had all of the testing performed, he was told he had to pick one of the two liver doctors to treat with. Since he lived in Butler County, the Defendant Liver Specialist’s office was in the North Hills and close to his PCP’s office and hematologist’s office, he chose the Defendant Liver Specialist over the UPMC liver specialist in Oakland.

At the second office visit with the Defendant Liver Specialist, the Defendant noted the testing that the patient had done (ordered by the UPMC liver specialist). Notably, the Defendant had access electronically to the UPMC records so he could’ve reviewed the liver biopsy results and CT scan result with a few clicks of his mouse in his office. When the patient asked the Defendant about his test results, the Defendants told him, “Nothing to worry about.”

Critically to this case, the results of the tests – the liver biopsy and CT scan - placed the patient at an increased risk for liver cancer. Liver cancer is known as the “silent killer” because it typically does not cause symptoms until it is too late. For that reason, liver cancer must be caught early and doctors must be vigilant in monitoring their patients who are at an increased risk for liver cancer. If caught early, the survival rate for liver cancer is high; if caught late, the prognosis is very grim. Therefore, doctors monitor patients who are at an increased risk for liver cancer by ordering imaging studies - ultrasounds or CT scans - of the patient’s liver every 6 or 12 months.

Over the course of the next 2½ years, the Defendants treated the patient for Hepatitis C without ever monitoring the patient for liver cancer. During this same period, the hematologist also successfully treated the patient’s PCT by lowering the patient’s iron levels. At the end of 2½ years, the Defendant told the patient that he was cured of Hepatitis C and liver disease, discharged the patient from his care, and gave the patient documented discharge instructions to call the Defendant if he ever had future symptoms (instructions which essentially sealed this patient’s fate).

A little over one year later, Mr. Kelvin went to the emergency room with pains in his abdomen and shortness of breath. A CT was ordered, now the first imaging of the patient’s liver in roughly 3½ years, which revealed cirrhosis and hepatocellular carcinoma Stage IV liver cancer.

Following Mr. Kelvin’s diagnosis, he treated with the top liver doctors in the region; however, due to the late stage in which the cancer was diagnosed, it could not be resected (surgically removed) due to the tumor’s “giant” size and vascular invasion. In an attempt to save his life, Mr. Kelvin did undergo chemotherapy, radiation and TACE treatments until it was decided that nothing more than palliative care could be provided.

On behalf of Mr. Kelvin and his wife, Cathy, we filed suit against the Defendant Liver Specialist and his practice group. The lawsuit was based on the Defendant’s failure to read the critical tests performed on Mr. Kelvin and his failure to monitor his patient for liver cancer.

In pursuing the case, we had Mr. Kelvin’s records and imaging studies reviewed by a nationally recognized liver specialist and leading authority in hepatitis C and liver disease, along with a nationally recognized oncologist. Both experts testified that had the Defendant followed the standard of care and ordering imaging surveillance, the cancer would have been caught in its early stages which would have given Mr. Kelvin a high likelihood of beating the cancer. Most importantly, the experts opined that could not believe that the Defendant actually reviewed the original liver biopsy and CT scan results, because if he had, he would have ordered follow-up surveillance.

Ultimately, we took the deposition of the Defendant who denied doing anything wrong. Moreover, he claimed that he absolutely reviewed the initial liver biopsy and CT scan results; but that the test results were not anything to worry about (despite not documenting the results in the chart). He further testified that he reviewed the test results electronically through the UPMC portal in his office (which allows access to UPMC records through his computer). Notably, he was very convincing and confident in his deposition.

Since something was amiss, following the depositions, we subpoenaed the “audit trail” from UPMC (an audit trail is a computer log which shows who accessed UPMC’s electronic records, when it was accessed, and what was accessed). The audit trail confirmed that the Defendant never accessed the biopsy report or CT scan as he claimed he did.

We later deposed the Defendant’s physician assistant who, after going through the records and the audit trail (unbeknownst to her), essentially confirmed that the Defendant was less than honest in his deposition as she testified that when test results are accessed, they are always printed and placed in the patient’s chart (here there were none in Mr. Kelvey’s chart).

Because Mr. Kelvey was dying, we then took aggressive steps to convince the court to schedule the jury trial a little over one year after we filed the case (it typically takes roughly 3 years). This was extremely important for our client as he wanted to be alive to have his story told.

Trial:

Going into trial, the Defendants’ insurance company refused to offer a nickel to settle the case and took the position that the case would never settle. They were convinced the Defendant would come across as a likeable, charming, convincing doctor who could talk his way around out of being held responsible.

On the 4th day of trial, the Defendant took the witness stand. During our cross-examination of the Defendant, when confronted with the audit trail, he changed his story and tried to claim that someone must have faxed him the biopsy report and that someone in his office likely lost the report. The Defendant also incredibly testified that he chose not to read the CT report because (paraphrasing) “CT scans sometimes find incidental findings which are benign but lead to more testing which sometimes kills patients.”

Following the Defendant’s testimony, the insurance representative sitting in the back of the room approached us about settlement. The case then settled for a 7-figure amount.

Sadly, Mr. Kelvey, who was truly a wonderful person, passed away shortly thereafter. Prior to his death, Mr. Kelvey wrote us a beautiful letter thanking us for giving him the peace of mind of knowing his wife will be financially taken care after he passes.