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Noteworthy CasesDOE*, Plaintiff vs. SMITH*, Defendant, Case No: 97-06333 13th Circuit, Hillsborough County, Florida
The plaintiff, age 36, presented to Tampa General Hospital for evaluation of a lesion in the proximal femur of his left hip in November, 1995. Dr. Art Walling, an orthopedic oncologist, scheduled plaintiff for a biopsy. The biopsy was sent to the Pathology Department at Tampa General Hospital where the defendant pathologists read the biopsy as normal. Due to the normal reading, Dr. Walling evacuated the lesion, packed the area with bone graft material and then inserted orthopedic hardware, including orthopedic plates and screws to stabilize the femur. Over the ensuing fourteen months, plaintiff’s lesion did not heal. He had fourteen subsequent surgeries, including twelve debridement procedures for suspected infection. The orthopedic hardware was eventually removed and a muscle flap procedure was performed. In November, 1996, plaintiff had a second biopsy of the same site. Biopsy slides were then sent to M.D. Anderson in Houston, Texas and to Shands Hospital at the University of Florida in Gainesville, Florida. Dr. Alberto Ayala at M.D. Anderson and Dr. Suzanne Spanier at Shands both interpreted the 1996 biopsy slides as angiosarcoma, a malignant vascular tumor in plaintiff’s femur. Plaintiff immediately underwent an amputation of his leg and hip. After making the cancer diagnosis, Dr. Ayala and Dr. Spanier requested re-cut slides from the November, 1995 biopsy. The defendant pathologist, having received word that her patient was diagnosed with a malignant vascular tumor and that pathologists at M.D. Anderson and Shands were requesting re-cuts of the tissue that she diagnosed as normal, instructed histotechnicians at the Tampa General Hospital laboratory to destroy portions of plaintiff’s pathology specimen and to make re-cuts from only selected portions of the 1995 tissue. The “new”re-cuts were sent to M.D. Anderson and Shands and, despite the selected presentation, both institutions diagnosed the 1995 tissue as cancerous. Plaintiff, having lost his leg and hip, required chemotherapy and follow up treatment. The cancer, however, metastasized to his lungs and he died in September, 1997. His wife continued the case as a wrongful death action. In March, 1998, during the deposition of a histotechnician at Tampa General Hospital, we learned for the first time of the defendant pathologist’s cover up and further discovered that the histotechnician who had been ordered by the defendant to destroy certain tissue had actually saved the tissue in a plastic bag in his desk drawer. The histotechnician produced the bag and the tissue specimen at the deposition. The tissue was then sent to an independent pathology lab and slides were made. Plaintiff’s expert, Steven Hajdu, M.D., reviewed the slides and determined that the removed tissue contained the most prolific and obvious example of a malignant vascular tumor. According to Dr. Hajdu, the 1995 biopsy, which was the one misdiagnosed by the defendant pathologist, revealed a low grade, treatable malignant vascular tumor in plaintiff’s proximal femur. At that time the tumor had an excellent prognosis, the plaintiff would have not needed any amputation, and the probabilities were that, with proper treatment, the plaintiff would have survived. Dr. Ayala at M.D. Anderson testified that the defendant pathologist deviated from the standard of care. The plaintiff was a custom home builder in Florida before his death. His annual earnings at the time of his death were approximately $40,000. The present value of the lost earnings and support claim was $900,000. He had no children. Settlement:...............$2,100,000 * We are not permitted to disclose the actual names of the parties pursuant to the terms of the settlement agreement.
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