In this case, we originally represented Joseph Ficorn, then after his death during the pendency of the case, Mr. Ficorn’s Estate. The case was against two surgeons, a surgical resident, a surgical oncologist, and a hospital based on their failure to treat malignant melanoma once it was diagnosed by a pathologist. As a result of the nearly one-year delay, Mr. Ficorn had to undergo more drastic surgery and treatment, which led to Myasthenia Gravis, and ultimately his death.
Mr. Ficorn, age 61, had surgery for a bowel obstruction. This surgery was performed by the Defendant Surgeon. During this surgery, the Surgeon also removed a mass from Mr. Ficorn’s neck which, after biopsy, revealed that he had malignant melanoma. Neither the Surgeon, nor any of the other Defendants, notified Mr. Ficorn or his family of this new cancer diagnosis. Mr. Ficorn only learned of this new cancer diagnosis from another physician almost one-year later by which time it had already metastasized.
As a result of the delay in treatment, Mr. Ficorn had to undergo a neck dissection and adjuvant interferon therapy to treat the cancer. This treatment would not have been necessary if the cancer was timely treated. Interferon therapy is a known cause of a condition called Myasthenia Gravis (“MG”) which is an autoimmune neuromuscular disease that leads to fluctuating muscle weakness, extreme fatigue, and a weakened immune system. Here, after receiving the interferon therapy, Mr. Ficorn was later diagnosed with MG where he experienced extreme muscle weakness, fatigue, etc. and had an overall downward spiral in his health until his ultimate death over two years later from septic shock.
As this case relates to each Defendant:
In her deposition, the Surgeon admitted that her office got the preliminary results of biopsy on May 19 (the surgery and biopsy were performed on May 15). She claims she was on vacation when the results came back and that her then partner, Partner Surgeon, took over the care of Mr. Ficorn as she “handed the care off to him”.
The Surgeon testified that she spoke with Partner Surgeon prior to her vacation about the mass she removed and that Partner Surgeon would know that the pathology did not come back yet. Partner Surgeon denied this (see below). The Surgeon also testified that Partner Surgeon took on the responsibility with this patient but failed to address the melanoma. The Surgeon did not see Mr. Ficorn again until May 27 when she returned from vacation (he was discharged on June 6).
The Surgeon also testified that she told Mr. Ficorn about the malignant melanoma diagnosis on June 4 - 2 days before discharge (the Surgeon did not see Mr. Ficorn again until May 27 when she returned from vacation). She testified that although she knew the results of the biopsy earlier, she waited until Mr. Ficorn was healthier to tell him about the results. This was denied by Mr. Ficorn in his deposition and denied by his family. The Surgeon admitted that there was nothing in the chart noting that she told Mr. Ficorn and had no real explanation for the same. The Surgeon also admitted that the Discharge Summary also did not reference the new cancer diagnosis and that it should have (i.e. proof that it wasn’t on anyone’s radar).
The Surgeon also testified that she consulted a Surgical Oncologist during Mr. Ficorn’s admission. She testified that she consulted the Surgical Oncologist and that he was to follow-up with the patient to treat the malignant melanoma. In fact, the Surgeon claimed to vividly remember her conversation, from years before, with the Surgical Oncologist. Oddly, the Surgical Oncologist unmistakably and unequivocally denied this in his deposition (see below). In any event, the Surgeon admitted that it was her job as the attending to ensure that consults ordered were done.
The Surgical Resident
The Surgical Resident was a 1st year surgical resident at the time. She had no memory of the events. The Surgeon was her attending (i.e. boss). She authored the Discharge Summary more than 30-days from the discharge contrary to hospital policy which required it to be done within 30-days. More importantly, she didn’t include any reference to the new cancer finding in the Discharge Summary. Her incredible excuse for not including it in the Discharge Summary was that a new cancer diagnosis is not routinely included in the Discharge Summary because although a new cancer diagnosis is a very significant finding, she does not try to capture everything in a Discharge Summary or be all inclusive. Again, this was just further proof that this new cancer diagnosis was not on anyone’s radar.
The Partner Surgeon
The Partner Surgeon was the Surgeon’s surgical partner at the time (they were no longer partners during the lawsuit). In his deposition and errata sheet, he took the position that had the Surgeon told him about the neck mass as she claims she did, he would have addressed it and he would’ve noted the same in the medical record. Amazingly, he also testified that although he took over the treatment of Mr. Ficorn during the Surgeon’s vacation, and although he was the doctor who treated Mr. Ficorn in follow-up visits, he had absolutely no duty to follow-up on the new melanoma diagnosis since it was not a condition in which he was specifically called upon to address.
The Surgical Oncologist
In his deposition, the Surgical Oncologist unequivocally testified that neither the Surgeon nor the Surgical Resident ever consulted him or spoke to him. He also testified that if a consult was made and if he had yet to see the patient by the next day, the routine was for the attending physician (i.e. the Surgeon) or the resident (i.e. Surgical Resident) who made the consult to follow-up with him. There is no question that this was never done. The Surgical Oncologist also testified that if he was consulted, he never would have said that Mr. Ficorn was too sick or that he’ll see the patient in weeks or months later when he is recovered from surgery (as the Surgeon claimed).
What is interesting is that the Surgical Oncologist was not originally a Defendant in this case. It was not until the Surgeon blamed him, that he was brought into the case. In the end however, if the Surgeon was to be believed over him, he essentially admitted that he would have been negligent (although the Surgical Oncologist appeared very credible in his deposition contrary to how the Surgeon appeared in hers).
The hospital was vicariously liable for the actions of the Defendant physicians under the theory of ostensible agency - even though they weren’t employed by the hospital - since Mr. Ficorn sought treatment from the hospital, and not the individual doctors.
The Defense Lawyers deposed Mr. Ficorn before he died and three of his children. One of the defenses was to try and blame Mr. Ficorn and his family for somehow not knowing that a pathologist diagnosed Mr. Ficorn with malignant melanoma on biopsy, even though none of the doctors ever told him or his family about it. Mr. Ficorn and his children were all were credible and consistent in their testimony.
The Defense then deposed Mr. Ficorn’s PCP. The goal of this deposition was to get the PCP to undermine our case, to say negative things about Mr. Ficorn, and to say that Mr. Ficorn was a non-compliant patient. Typically, when the Defense schedules the deposition of a treating doctor, the treating doctor contacts their medical malpractice insurance carrier, who then appoints a lawyer to represent the doctor at the deposition, and then somehow, the treating doctor knows exactly what to say to help the Defendant doctors out. In this case, in a rare move, the PCP never contacted anybody and just agreed to be deposed without a lawyer. Needless to say, the Defense Lawyers were extremely frustrated by this and the PCP’s answers (she testified that Mr. Ficorn was very likable and extremely complaint), and this deposition actually helped our case
In the end, we secured expert opinions from an expert surgeon, expert oncologist, and expert neurologist. The Defense did the same. Although there was some finger pointing amongst the different Defense experts, the collective defenses included: Mr. Ficorn was somehow to blame, they would’ve wanted to wait nearly one-year to treat the malignant melanoma anyhow, his subsequent MG diagnosis and death was a complete coincidence, etc.
One week prior to the scheduled jury trial, the case settled for a substantial amount.