The LaRosa Case
This was a wrongful death and survival action case brought against a radiologist and his practice group. The radiologist failed to recognize a pancreatic cystic lesion on a CT scan causing a 15-month delay in the diagnosis and treatment of pancreatic cancer resulting in death.
Paul LaRosa, a 66-year old retired coal miner, went to the Frick Hospital ER with severe pain in his back. He was given medication to help relieve the pain. An x-ray was then taken of his lower back which didn’t explain a cause of the pain. A CT scan was then taken of his abdomen and pelvis.
The CT scan showed a cystic lesion of the pancreas roughly the size of a marble.
The radiologist whose job is was to read the CT scan was Dr. Matthew C. Banks.
Dr. Banks wasn’t at Frick Hospital. Dr. Banks was at Latrobe Hospital. Dr. Banks got a notification that a 66-year old male with back pain just had a CT scan done. It was his job to read the CT. It was his job to look at all of the images to see if he can find a source of the back pain whether it was the aorta, a vertebrae, the pancreas, or somewhere else. In his deposition, Dr. Banks acknowledged that he would have had to closely scrutinize the pancreas. Dr. Banks also acknowledged it was his job to look for any other abnormal or suspicious findings in the CT; those are called incidental findings and frequently how cancer is diagnosed at an early stage.
Dr. Banks read the CT scan and dictated a radiology report with his findings. In his report, he documented that the pancreas was “unremarkable” (normal), and that there were no acute findings (meaning he found no explanation for the severe back pain that brought the patient to ER). This is what is considered a negative CT report.
Dr. Banks’ report was then sent electronically to the ER doctor back at Frick Hospital. The patient’s pain had gone down to a 2/10 (recall he was on pain medication). The ER doctor read Dr. Banks’ report, saw nothing to worry about in the CT scan, gave the patient a prescription for pain medication, and discharged the patient with a diagnosis of “back pain”.
Over the next 9 months, the patient came back to ER at Frick three additional times with complaints of severe back pain. The ER doctors had Dr. Banks’ negative CT report showing the patient just had a CT scan done in October that was read as normal that didn’t reveal a source of the back pain. As a result, no new imaging studies were ever ordered. In fact, the ER records reveal that it was believed the patient simply had “chronic back pain” and each time the retired coal miner was sent home with a diagnosis of chronic/arthritic back pain. Notably, those ER doctors were in the dark about a cystic lesion in the patient’s pancreas. The patient’s PCP, who he would follow-up with, was also in the dark about this cystic lesion.
Then, 15½ months after the original CT scan, on a Sunday afternoon in January, Mr. LaRosa came back to the Frick Hospital ER with complaints of pain in his abdomen and sides (a classic late sign of pancreatic cancer). The ER doctor ordered a CT scan of the abdomen and pelvis. A radiologist named Dr. Alan Thornburg read the CT scan. He found a tumor in the pancreas and sent a radiology report back to the ER. Notably, in his report, this radiologist noted that he compared the current CT scan to the prior CT scan from 15½ months earlier and noted that there was a cyst “evident” at the same location where he found the current tumor.
The ER doctor gave this chilling news to Mr. LaRosa and his family. Although it was suspected to be cancer it couldn’t yet be confirmed so the there was still hope. The patient was told to follow-up with his PCP and have the PCP order and MRI.
Prior to seeing the PCP which they also did, the patient and his family, who were very proactive, took it upon themselves to make arrangements be seen in Pittsburgh to treat with pancreatic cancer specialists at UPMC. There, additional testing was done including an endoscopic ultrasound with biopsy. An endoscopic ultrasound is where a camera with an ultrasound probe is put down the patient’s mouth to get picture of the pancreas. It also has a needle on it to take a biopsy and/or fluid sample from the cyst.
Importantly, unbeknownst to many people, pancreatic cancer can be successfully treated. If caught early enough, the part of the pancreas where the cancer is located can be surgically removed. The reason why pancreatic cancer has such a bad prognosis is that it is most often caught late when it cannot be surgically removed (due to the location of pancreas, tumors typically don’t cause symptoms until they are too large and/or the cancer has already metastasized/spread).
The test results came back and Mr. LaRosa had to be given the worst news possible: pancreatic cancer. Even worse, the tumor was just past the point of being able to be surgically removed. It was determined to be “borderline resectable”. It was cancer that began as the cystic lesion seen on the CT scan missed by Dr. Banks.
His doctors at UPMC gave him several courses of chemotherapy to try and shrink the tumor to the point that it could be surgically removed. It shrank some, but not enough to be resected or surgically removed. Eventually radiation was given. The cancer ultimately to spread to his liver and Mr. LaRosa was told nothing else could be done.
After a brave, hard, and debilitating fight, Mr. LaRosa died at home surrounded by loved ones. The cause of death, the only cause of death, was metastatic pancreatic cancer. He was 69-years old. Mr. LaRosa and his family came to us shortly after his diagnosis so the lawsuit was filed prior to his passing (which allowed us to take Mr. LaRosa’s videotaped deposition to be played at trial).
We sued Dr. Banks and his employer, Radiologic Consultants, LTD. We also sued Frick Hospital based on a legal theory called ostensible agency.
In the lawsuit, which was amended to represent Mr. LaRosa’s Estate, we alleged that Mr. LaRosa’s pancreas should have been closely scrutinized in the CT scan, and that if it was, Dr. Banks would have identified the cystic lesion. Identification of the cyst would have then allowed doctors to monitor and/or surgically remove the cyst before it turned into the inoperable deadly tumor.
The Defendants denied any responsibility. Notably, in his deposition, Dr. Banks refused to acknowledge that the cyst was a cyst - even in retrospect. No offer to settle the case was ever made so we tried the case in front of the Honorable Anthony Marsili in Westmoreland County.
We had the case reviewed by world renowned experts in both pancreatic radiology and surgical oncology. Both experts testified at trial that Dr. Banks was negligent for failing to identify the cystic lesion on the CT scan. They both testified that had Dr. Banks taken his time and closely scrutinized the pancreas, there is no excuse for missing the cyst. They also testified that had the cyst been identified, follow-up would have included a CT scan with pancreas protocol and/or an endoscopic ultrasound to further characterize the cyst. Had the cyst been determined to be malignant or premalignant, it would have been surgically removed with a Whipple procedure; conversely had the cyst been found to be not so concerning, it could have been closely monitored and then removed at the first sign of danger.
The Defense hired two experts to testify on their behalf at trial: a radiologist from the University of Maryland and medical oncologist from Johns Hopkins University. They both testified that Dr. Banks was not negligent: that it was an “understandable miss” because the cyst was “too subtle.” They also testified that even if the cyst was identified, due to its small size (under 2 cm) and non-worrisome features, “guidelines” dictated that no follow-up would have occurred for 12-months, and by that time, it would have been too late anyhow. They also testified, incredibly, that the tumor and cyst were coincidental, i.e. that the cyst in the exact same location of the pancreas did not turn into the cancer. The oncologist from Johns Hopkins further testified that he was able to determine that Mr. LaRosa had microscopic metastasis disease well before his diagnosis and that death from pancreatic cancer was inevitable regardless of when it was diagnosed (something that he acknowledged was a “theory” that was contrary to what Mr. LaRosa’s treating doctors believed).
The Defense also insinuated throughout trial that Mr. LaRosa could not have survived the corrective Whipple surgery and/or already had a very limited life expectancy anyhow due to two prior heart attacks, seven prior cardiac stents, a pacemaker, obesity, type II diabetes, COPD, and the fact that he was a former smoker.
Interestingly, Dr. Banks, who denied that it was a cyst in his deposition and was therefore stuck to that testimony, was the only doctor at trial who took that absurd position. Our experts both opined that the cyst was a cyst. The radiologist who found the tumor (Dr. Banks’ own partner) testified, per his radiology report, that it was “evident” to him it was a cyst. Even the expert witnesses that Dr. Banks’ lawyer hired acknowledged the cyst was a cyst at trial.
After five days, the jury returned a substantial verdict in our favor against Dr. Banks and his employer. The verdict was strictly for non-economic damages as there was no claim for lost wages or special damages.
Significantly, it was the first plaintiff’s medical malpractice verdict in the ultra-conservative County of Westmoreland in the pastsh nine years.