Plaintiff Can Pursue Alternate Liability in Claim of Missed Cancer
April 1, 2023 5 minutes read
News: On Feb. 21, an appellate court affirmed a lower court’s ruling a plaintiff may disavow the negligence of a joint tortfeasor after settlement in the continued action against the remaining joint tortfeasor. In affirming the trial court’s denial of defendant’s motion to bar expert testimony relevant to the settling joint tortfeasor’s conduct, the appellate court also found the plaintiff should not be judicially estopped from reversing position with respect to the negligence of a settling joint tortfeasor at trial because, unlike claims against successive tortfeasors, damages are not divisible between multiple tortious events.
Background: In November 2010, a patient was admitted to the hospital with complaints of abdominal pain, vomiting, and diarrhea. She underwent a CT scan of the abdomen and pelvis. The defendant radiologist noted “no acute findings.” Due to her abdominal and gastrointestinal complaints, the patient’s care team included a gastroenterologist, who recommended the patient follow up with him for an endoscopy and colonoscopy. The following month, the patient reported to the gastroenterologist for continued abdominal pain, constipation, diarrhea, and left lower quadrant pain. In January 2011, the patient underwent a colonoscopy performed by the gastroenterologist, the result of which demonstrated an entirely normal colon. Although the gastroenterologist indicated a need for an outpatient endoscopy and colonoscopy in November 2010, only a colonoscopy was performed in January 2011.
On July 13, 2012, the gastroenterologist attempted to perform an endoscopy on the patient. It was aborted due to a large amount of food in decedent’s stomach. Despite continuing to treat the patient’s worsening symptoms from November 2010 to October 2012, the gastroenterologist never attempted to perform the procedure again.
In December 2012, the patient underwent a gastric biopsy and a CT scan of the thorax, abdomen, and pelvis. A gastric mass was identified, which was found to be adenocarcinoma, stage IV. The patient died of gastric cancer on Aug. 17, 2013.
Two years later, the patient’s family filed a negligence complaint against the gastroenterologist and other defendants. Initially, the plaintiffs also filed claims against the radiologist and his practice. Plaintiff submitted two reports. In the first, an expert concluded the radiologist deviated from the applicable standard of care by “missing a gastric mass suspicious for malignancy or misinterpreting the mass and not providing a full differential diagnosis as well as recommending additional follow-up such as with endoscopy.” In the second report, a causation expert testified the patient’s tumor was stage I when the radiologist read the CT scan in question. Therefore, the patient was deprived of a 60% clinically estimated chance of cure and an 88% chance of survival.
The defendant radiologist submitted his own expert radiologist report, which concluded interpretation of the November 2010 CT scan was “well within the standard of care.” In defending the radiologist’s decision to not comment on the patient’s gastric thickening, the expert argued “gastric thickening ... without any associated findings ... would be a normal potentially expected finding,” and that “[e]ndoscopy, not CT, is the method to diagnose gastric cancer (particularly early cancer).” Finally, the expert stated that even if a malignant tumor were evident on the CT scan, it would already have been at an advanced stage as of that date.
On Oct. 30, 2019, the plaintiffs settled their claims against the radiologist and his practice. The remaining defendants have since pleaded crossclaims for contribution and indemnification against the radiologist. Before trial, the plaintiffs planned to call the radiologist’s expert as a witness. Plaintiff’s counsel stated he intended to call the expert at trial to offer the opinions as set forth in the report. The defendants moved to bar the expert’s standard of care opinions, but the trial court denied the motion. The appellate division affirmed the trial court’s decision and noted the preclusion of a plaintiff from disavowing the negligence of an initial tortfeasor after settlement in a later action against a successive tortfeasor as outlined in Glassman v. Friedel, 249 N.J. 199 (2021), did not apply because the remaining treating physicians were not “successive tortfeasors” but joint tortfeasors. Plaintiff’s decision to argue the radiologist’s conduct was not negligent was permissible under the law.
What this means to you: This case is a lesson in the difference between joint and successive tortfeasors. A physician’s potential liability may be determined by this distinction. “Joint tortfeasors” are two or more persons whose collective negligence in a single accident or event causes damages to another person. Joint tortfeasors are held jointly and severally liable for damages. This means each tortfeasor could be responsible for the entire amount of the judgment. “Successive tortfeasors” are two or more parties whose actions may occur at different times and cause different injuries to the same plaintiff. A successive tortfeasor may seek an apportionment of the damages between those caused by its negligence and the damages caused by the initial tortfeasor, regardless of whether the initial tortfeasor was adjudged negligent or whether the initial tortfeasor settled out of the case.
Successive tortfeasor liability guarantees the relative fault of the party causing the initial injuries is irrelevant and the damages apportionment ensures a defendant is not obligated to pay for injuries he or she did not proximately cause. In this case, where the same harm and/or damages suffered by the patient (namely, failure to diagnose the cancerous mass) were the result of more than one provider, they are joint tortfeasors.
Because each joint tortfeasor may be held responsible for the entire amount of a judgment against all tortfeasors, the courts permit plaintiffs to change course after settlement and claim the settling party’s actions were reasonable. The remaining tortfeasors may still be held liable for the full judgment (albeit with the settling defendant’s payment apportioned from the full judgment).
This illustrates several points:
- Competent counsel familiar with these nuances is key;
- Expert opinion is critically important, even in the early stages of trial;
- Consideration of early settlement when the question of standard of care may be disputed by a jury. Consider as a remaining joint tortfeasor that all liability could be attributed to you when the other tortfeasors have settled.
Finally, misreads are not unusual, and radiologists often advise physicians to correlate the findings with the clinical status of the patient. If symptoms persist or worsen, further studies should be ordered, and all findings evaluated against the clinical picture. An assumption that a finding, such as gastric thickening, is a normal finding in the face of worsening symptoms or continued pain, is a dangerous one.
REFERENCE
- Decided Feb. 21, 2023, in the Superior Court of New Jersey, Appellate Division, Case Number A-0052-22.
This case is a lesson in the difference between joint and successive tortfeasors. A physician’s potential liability may be determined by this distinction.
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