Garrett v. Mercy Health System

$6 million verdict

Date of Verdict: March 6.

Court and Case No.: C.P. Philadelphia No. 150803956.

Judge: Michael Erdos.

Type of Action: Medical malpractice.

Injuries: Wrongful death.

Plaintiffs Counsel: Emmanuel O. Iheukwumere, Emmanuel Law Firm, Philadelphia.

Plaintiffs Expert: Dr. Daryl R. Fanney, board-certified gastroenterologist, Virginia Beach, Virginia; Dr. Gerald Salen, gastroenterology, Newark, New Jersey; Dr. Mark S. Johnson, family medicine, Newark, New Jersey; Dr. Andrew Schneider, oncology and palliative medicine, Florida.

Defense Counsel: Medford J. Brown III, Goldfein & Joseph, Philadelphia.

Defense Expert: Dr. Richard M. Gore, liability and causation, Evanston, Illinois; Dr. Navena Damjanov, causation, Philadelphia.

Comment:

A Philadelphia jury on March 6 awarded $6 million to the estate and wife of a 65-year-old man who died of liver cancer after his doctors disregarded two separate recommendations for MRIs by radiologists.

However, the exact portion of the verdict that is actually recoverable is unclear. Two of the three defendant doctors named on the verdict sheet settled for confidential amounts before trial, leaving only Dr. Eugene Choi, whom the jury found to be 32 percent liable. While that would typically leave Choi on the hook for $1.92 million, that's not necessarily the case here because the estate and Choi entered into a confidential high-low agreement just before the jury came back with the verdict.

The 12-member jury handed up the unanimous verdict in Garrett v. Mercy Health Systemn after six days of trial and about two-and-a-half hours of deliberations in Philadelphia Court of Common Pleas Judge Michael Erdos' courtroom. The award comprised $1 million under the Survival Act and $5 million under the Wrongful Death Act. The jury found the two settling defendants, gastroenterologist Dr. Steven Lichtenstein and primary care physician Dr. Harvey Soifer, 38 percent and 30 percent liable, respectively.

According to the plaintiffs' pretrial memorandum, plaintiff Harry Garrett Jr. was diagnosed with hepatitis C and cirrhosis in 2007.

In 2009, Garrett became a patient of both Lichtenstein and Soifer. In November 2010, Garrett also became a patient of Choi, who specializes in hematology and oncology and began treating Garrett for anemia and other conditions. All three defendants were physicians with Mercy Health System, the plaintiffs' memorandum said.

In December 2010, Garrett underwent an ultrasound ordered by Soifer, after which the radiologist recommended an MRI of the liver, noting that it was a better method than ultrasound for detecting liver cancer, according to the plaintiffs' memorandum.

Between Dec. 8, 2010, and April 27, 2013, the decedent met with the three doctors multiple times, but none of them ever ordered the recommended MRI, according to the plaintiffs' memorandum. On April 27, 2013, after Garrett was admitted to Mercy Fitzgerald Hospital with blood in his stool, he underwent a CT scan of his abdomen and pelvis to rule out gastrointestinal bleeding. The radiologist who performed the CT scan again recommended an MRI, but none of the defendant doctors ordered one.

In June 2014, the Lichtenstein ordered an ultrasound for screening, which did not show a mass, according to the plaintiffs' memorandum. But on Oct. 5, 2014, Garrett was admitted to the emergency room at Mercy Fitzgerald Hospital with severe abdominal pain. A CT scan was performed the same day, showing a suspected ruptured liver mass, which was confirmed by an enhanced MRI the following day. On Oct. 8, 2014, Garrett was deemed to be a poor candidate for surgery and a subsequent biopsy confirmed the mass had originated from liver cancer. Garrett died Nov. 9, 2014, at age 65.

The plaintiffs argued that the defendant doctors failed to timely diagnose Garrett's cancer because they disregarded the two prior MRI recommendations.

Choi, however, argued in his own pretrial memorandum that, prior to the MRI performed on Oct. 6, 2014, Garrett had undergone several other types of radiology studies, including the June 6, 2014, ultrasound, and none showed signs of hepatocellular carcinoma.

Choi also argued in his pretrial memorandum that Garrett had “outlived his life expectancy” based on his medical history, which, in addition to hepatitis C, cirrhosis and anemia, included thrombocytopenia, atrial fibrillation, diabetes and obstructive sleep apnea.

Counsel for Choi, Medford J. Brown III of Goldfein & Joseph in Philadelphia, said that despite the fact that the jurors heard testimony from two experts on each side, they deliberated only “very briefly” from about 11:10 a.m. to 1:30 p.m., during which time they were also given lunch.

“In my view, the award is a joke, actually,” Brown said. “The reason I say that is the decedent was 65 at the time of his death, had a very extensive medical history and there was expert testimony from the defense that he basically had lived out his life expectancy because of his numerous comorbidities.”

But when asked what he thought might have swayed the jury in his clients' favor, counsel for Garrett's wife and estate, Emmanuel O. Iheukwumere of the Emmanuel Law Firm in Philadelphia, said Choi's ”failure to act was pretty obvious” and that the defendant doctors ignored “clear-cut recommendations” by radiologists.

Iheukwumere tried the case with Fabio A. Sciarrino of his firm.

Counsel for Lichtenstein, Daniel Divis of Gerolamo Mcnulty Divis & Lewbart in Philadelphia, said he had no comment on the verdict because he and his client were not involved in the trial.

Counsel for Soifer, E. Chandler Hosmer of Marshall Dennehey Warner Coleman & Goggin in King of Prussia, could not be reached for comment.

—Zack Needles, of the Law Weekly