Failure to Address Pulmonary Nodules Resulting in Late-Stage Lung Cancer and Death

The Smiers Case

Case Summary

This was a case where over the course of nearly two years, a patient received multiple CT scans that found pulmonary nodules, growths in the lungs that can be cancerous. Despite the concerning nodules, no doctor ever told the patient about them nor was any follow-up ever ordered. By the time the nodules were addressed, the patient was diagnosed with late-stage cancer resulting in his untimely death.

The Medicine

A pulmonary nodule is an abnormal growth that forms in the lung. Most lung nodules are benign (not cancerous); however, pulmonary nodules can be a sign of lung cancer. It is for this precise reason that pulmonary nodules must be carefully monitored. Pulmonary nodules are identified on imaging scans, including CT scans. It is extremely important to distinguish a benign nodule from a cancerous nodule as early as possible.

Once pulmonary nodules are identified, the next step is typically to get a repeat CT scan completed to see if the nodules are growing over time. Large nodules or a nodule that grows larger over time are signs of cancer and must be evaluated by a physician. If CT scans are concerning for cancer, a physician should get a biopsy performed to confirm whether cancer is present. If caught early enough, cancerous nodules can be treated by removing them surgically.

Case Details

Mr. Smiers was seen numerous times at Defendant Hospital throughout 2016-2018 during which time imaging was performed both through the emergency department and as an inpatient. He received several CT scans that resulted in findings of pulmonary nodules beginning in 2016. Mr. Smiers was 80 years old at the time pulmonary nodules were first identified on CT imaging. Unfortunately, Mr. Smiers was never informed about the pulmonary nodules and no follow-up was ordered to address the pulmonary nodules until April 2019, nearly three years after they were first identified.

Mr. Smiers finally learned about the pulmonary nodules in 2019 when his urologist voiced his concern regarding pulmonary nodules during an appointment that was meant to address removing a suprapubic catheter. Mr. Smiers and his wife were shocked to hear this information as it had not been relayed to them in the years that he had been getting regular scans.

Mr. Smiers received imaging at Defendant Hospital that resulted in findings of pulmonary nodules on September 26, 2016, April 16, 2017, April 17, 2017, and May 19, 2018. Despite these significant findings, Mr. Smiers was never informed of the pulmonary nodules, and nothing was done to address the pulmonary nodules, which were growing in size.

Interrogatories are written questions from one party to another as part of the discovery process. Answers to interrogatories are verified and signed by the answering party. During the discovery process in this case, we sent interrogatories to Mr. Smiers’ PCP (a Defendant in the case) wherein we asked if he was ever provided the imaging reports from Mr. Smiers’ CT scans that identified pulmonary nodules. Initially, in his answers to interrogatories, Mr. Smiers’ PCP denied ever being provided Mr. Smiers’ imaging reports. However, during discovery, we uncovered a record that identified “abnormal results” from the September 26, 2016 CT scan that were faxed to the PCP’s office directing him to follow up on the results. The PCP never followed up on those abnormal imaging results.

After we directed the PCP to the document indicating that Mr. Smiers’ imaging report was faxed to his attention, the PCP changed his answer to the initial interrogatory so as to state, “it is likely that [the PCP] and/or his office was provided with the September 2016 report,” essentially admitting that he was put on notice of the abnormal CT imaging results despite not ordering any follow-up. Even after providing this revised answer to interrogatories, during his deposition, the PCP still claimed that he never reviewed Mr. Smiers’ abnormal imaging results.

The PCP testified that had he been aware of these imaging results, or had he reviewed them, he certainly would have followed up on them and made “some kind of effort to address it.” However, no follow-up was ordered by the PCP on the September 26, 2016 CT scan or any of the subsequent images identifying pulmonary nodules.

During his deposition, the PCP also testified that he had access to all of Mr. Smiers’ imaging reports during Mr. Smiers’ regular appointments, but he had no reason to review them based on the documentation of the ED physicians at the Defendant Hospital. 

After finally learning about the pulmonary nodules, Mr. Smiers was ultimately diagnosed with moderately differentiated squamous cell carcinoma; clinical stage IIIB.

On June 19, 2019, Mr. Smiers met with an oncologist who noted that Mr. Smiers was not a surgical candidate based on his disease stage. Additionally, he documented that in light of his renal function and cardiac history along with performance status, the risks of chemotherapy with radiation likely outweighed the benefit. Palliative chest radiation treatments were completed in August of 2019 and oncology recommended not proceeding with any further treatments.

Mr. Smiers ultimately passed away at 84-years-old in July 2020 of metastatic lung cancer. On his Death Certificate, Mr. Smiers’ only cause of death listed was “Malignant neoplasm of Lung.” No other contributory causes were listed.

Prior to trial, the parties must produce reports from expert witnesses who will testify during the trial. The reports must include the expert testimony that will be offered by the respective parties at trial. The Defendant Hospital produced only one expert report from a physician that did not even address liability, because there was simply no defense to the lack of care and follow-up regarding the pulmonary nodules identified on multiple occasions in Mr. Smiers’ imaging.

Rather, with no defense to liability, Defendant Hospital’s expert took the typical Defense approach of attacking causation. Mr. Smiers was diagnosed with squamous cell carcinoma of the lung after his pulmonary nodules went unchecked for years and grew in size. Mr. Smiers’ health began to significantly deteriorate after he was diagnosed with this cancer to the point that he was admitted to hospice care in January 2020.

On Mr. Smiers’ Death Certificate, the only cause of death listed was “Malignant neoplasm of Lung.” No other contributory causes were listed. With no credible defense, Defendant Hospital was left to refute Mr. Smiers’ cause of death, regardless of the mountain of evidence pointing to exactly what was listed on the Death Certificate.

Since the Defendant’s expert had to disagree with the Death Certificate, he asserted that Mr. Smiers’ lung cancer was “adequately treated” and “not active at the time of the patient’s death.” Coincidentally, the Defense expert nonsensically claimed that it was not the cancer that caused Mr. Smiers’ death, but it was the other comorbidities that Mr. Smiers had been living with for years prior to being diagnosed with lung cancer that caused his demise.

Defendant’s position in this case is not unique. When a case involves an elderly patient and there is negligence as clear as in this case, Defendants often take the approach of, “he was old, he was going to die whether there was negligence or not.” Importantly, the standard in Pennsylvania is whether the negligence increased the risk of harm to the patient. There is no doubt that the negligence of the Defendants increased the risk that Mr. Smiers would be diagnosed with late-stage lung cancer causing his death.

Mr. Smiers’ PCP did not so much as dispute that there was negligence with regard to Mr. Smiers’ care, but rather he pointed the finger at the Defendant Hospital and the emergency department physicians’ improper documentation as the reason for a lack of follow-up care for Mr. Smiers’ pulmonary nodules. It is beneficial to Plaintiffs when there are Defendants pointing the finger at one another, such as in the present case. While the PCP provided a litany of reasons why he was not responsible for following up on Mr. Smiers’ pulmonary nodules, he did not deny that they required follow-up care and treatment.

Rather, through his own testimony and the reports of expert witnesses, he took the position that the physicians at the Defendant Hospital failed to put him on notice of the need to follow up on the pulmonary nodules identified in imaging and failed to arrange for follow-up care, despite documentation evidencing the same.

The PCP’s experts echoed the other Defendant experts’ assertion that an earlier diagnosis of lung cancer would not have made a difference for Mr. Smiers despite his living with the comorbidities identified for years prior to his diagnosis of lung cancer. However, there was no sign of Mr. Smiers’ impending death until he was ultimately diagnosed with late-stage lung cancer.

The Result

The case proceeded through discovery, and prior to trial, the case was settled for a substantial amount.