The Berzinski Case
In this case, we represented the Estate of a Phillip Berzinski in a suit against the Defendant urologist for failing to timely diagnosis and treat bladder cancer. Due to the Defendant’s negligence, Mr. Berzinksi died from metastatic bone cancer at age 66.
Due to complaints of blood in his urine, Mr. Berzinski, an otherwise extremely healthy man, was referred to an urologist for evaluation. This urologist examined Mr. Berzinksi and decided to perform a cystoscopy (a procedure where an urologist inserts a cystoscope - a tubular instrument equipped with a light – into the bladder to examine the interior of the bladder and ureter).
During this initial cystoscopy, the Defendant urologist found a tumor in the bladder. The urologist fulgurated it (burned it) and obtained bladder biopsies. The ensuing pathology report revealed a diagnosis of invasive high grade urothial carcinoma, grade three, involving the lamina propria (bladder lining). Significantly, the pathologist noted that he was unable to determine if the cancer invaded the bladder muscle because the urologist failed to obtain muscle in the biopsies. This was a critical omission and should have prompted the urologist to immediately re-biopsy the area.
Instead, three months later, the urologist performed another repeat cystoscopy, found another tumor, fulgurated it, and again obtained bladder biopsies. Again, the pathology report revealed a diagnosis of invasive high grade urothial carcinoma, grade three, involving the lamina propria (bladder lining). Again, the pathologist noted that he was unable to determine if the cancer invaded the bladder muscle because the urologist failed to obtain muscle in the biopsies. Again, the urologist did nothing when he was told that no muscle was included in the biopsy specimens.
Failing to include muscle in a biopsy specimen is critical because knowing whether cancer invaded the muscle wall drastically changes a patient’s care. The Defendant urologist even testified as follows in his deposition:
Q. Would the standard management be different had the cancer invaded the muscle?
If there was evidence for invading, the cancer going into the muscle, the management would have been different.
Q. What would have been different? What would you have – what would have been the standard management had the cancer invaded the bladder?
Once the cancer has invaded in the bladder, then we recommend removing the whole bladder.
Despite this testimony and despite knowing that he never obtained a muscle specimen in the bladder biopsies, the urologist never attempted to re-biopsy the area to obtain a muscle specimen. Instead, the Defendant took a “watch and wait” approach. So over the next two years, the urologist went on to perform three additional cystoscopies. While the biopsies did not reveal cancer, again, none of the biopsies contained any muscle. Consequently, it was never determined whether the original cancerous tumor had invaded the muscle wall.
Two years later, after seeing a large bladder tumor during a repeat cystoscopy, the Defendant finally took a biopsy specimen that contained muscle. This biopsy revealed that Mr. Berzinski’s bladder cancer had in fact invaded the muscle wall and metastasized. As a result, Mr. Berzinski had to have his bladder removed (in an attempt to stop the cancer from spreading) and undergo months of chemotherapy.
At this point, Mr. Berzinski contacted our firm. He wanted to know if this should have been caught earlier and if better care would have changed his outcome. Tragically however, by the time we filed suit, it was found that his bladder cancer had already spread through the bladder prior to its removal, into his lymph nodes, metastasized into bone cancer, and caused Mr. Berzinski’s death.
Mr. Berzinski left behind a wife of 45-years, a married daughter, and 1 grandchild. Mr. Berzinski graduated from Vandergrift High School, served in the military, and attended Penn State. He worked for a local cable company for approximately 30-years. He also served as a Pennsylvania State Constable for 16-years.
On behalf of Mr. Berzinski’s widow and Estate, we filed a Wrongful Death and Survival Act lawsuit against the urologist and his corporation.
After taking discovery and depositions, we produced expert reports from an expert urologist and expert oncologist. Both experts agreed, inter alia, that the Defendant urologist was negligent by failing to obtain adequate biopsy specimens (i.e. failing to obtain muscle) and that this negligence led to the unrecognized progression of the cancer, metastatic disease, and Mr. Berzinski’s death.
The Defendant, through his insurance lawyers, originally filed an expert report from an urologist that defended the negligence solely by claiming that the standard of care did not require the Defendant to obtain any muscle in his biopsy specimens (the “expert” basically claimed that although muscle is required, this was an exception because the Defendant’s “visual inspection” was adequate). This expert did acknowledge, as did Mr. Berzinski’s treaters, that this was a recurrence of the original cancer that eventually metastasized.
In response, our expert urologist filed a supplemental report opining that the Defense expert is “absolutely incorrect” and “absolutely wrong” when he claims that it was standard of care to not obtain muscle in this case.
Dueto the glaring weakness in the defense theory, the Defendant, one-month prior to the scheduled trial, then filed a new expert report from a new urologist with a completely new defense theory. The defense then became that “it was not a recurrence” of the original cancer, but rather a new, completely coincidental cancer appeared in the bladder that had nothing to do with the original cancer.
Due to the Defendant’s late production of this new report with a new defense theory, the Court continued the case (it should be noted that despite the black and white differences of the two defense urologist reports, Defense Counsel argued that these two reports were not at odds and that the new report did not present a new theory about a new cancer).
Interestingly enough, Defense Counsel then advised the Court that they needed to review Mr. Berzinski’s biopsy specimens from the initial cystoscopies. The Defense argued that they needed the biopsy specimens only so that an expert pathologist could determine whether there was muscle present in the original biopsies that simply went unrecognized by the pathologist. Conversely, we advised the Court of our suspicion that, contrary to the Defense Counsel’s representations, the Defense did not want the biopsy specimens to determine whether there was muscle in the original biopsy specimens but rather because the Defense wanted to have an expert pathologist come up with an expert report to support this new theory regarding a new unrelated cancer. In response, Defense Counsel denied our assertions and again represented to the Court that they only needed the biopsy materials, not to support any theories regarding a new cancer, but only to see if there was muscle present in the biopsies that the original pathologist never recognized.
Thereafter, the Defense produced an expert report from a pathologist. Just as we suspected and despite what Defense Counsel represented to the Court, this pathologist claimed that Mr. Berzinski did not suffer a recurrence and that the cancer that led to his death was a new occurrence that had nothing to do with the initial cancer. This report had no mention whether muscle was present in the original biopsies.
In turn, we had one of the leading authorities in the country, from Johns Hopkins University, review the pathology materials. This doctor’s opinion was that the cancer that led to Mr. Berzinski’s death was the same cancer that was present initially and that the Defense theory made no sense.
Two weeks prior to the scheduled jury trial, the parties mediated the case; the case settled for a substantial amount.