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A Philadelphia judge has denied the defense’s appeal of a nearly $2.6 million verdict awarded by a jury in January to a terminally ill man who claimed his primary care physician ignored his requests to have him screened for prostate cancer when he was in his early 40s. But the lead defense attorney in Hines v. Kosseim told The Legal Intelligencer Thursday that the parties have since settled the matter. Charles Fitzpatrick III of Mylotte David & Fitzpatrick in Broomall, Pa., would not say how much the matter was settled for, but did say it was for less than the jury’s verdict, which, when adjusted for comparative negligence and delay damages, was worth just over $2.75 million. Plaintiffs attorney Robert Stein of Stein & Troiani in Bala Cynwyd, Pa., who represented Hines with partner Michael Troiani, also declined to say how much the settlement was worth. He confirmed that the settlement was for less than the verdict, but said it still amounts to a substantial sum. According to an opinion filed Aug. 15 by Judge Nitza I. Quinones Alejandro, who presided at trial, Gilbert Hines, an African-American, was 41 in 1999 when he was first examined by physician Laura Kosseim. Hines, an advertising copywriter, had recently worked on an ad campaign aimed at raising awareness about prostate cancer among middle-aged African-American men. He claimed that when he went to see Kosseim for a routine physical exam in 1999, according to the opinion, and he asked that she screen him for prostate cancer. Kosseim performed a digital rectal exam during that 1999 visit — which did not reveal any abnormalities — but the blood tests she ordered for Hines at the time did not include a prostate-specific antigen screening test, according to the opinion. When Hines saw Kosseim just under two years later, she did not conduct a digital rectal exam nor order a PSA test, according to the opinion. In November 2001, Hines went to another physician in Kosseim’s practice, complaining of fever, chills and respiratory problems, according to the opinion. A digital rectal exam and PSA tests ultimately led to his being diagnosed with prostate cancer that had metastasized to his bones. He filed a failure to timely diagnose suit against Kosseim and other defendants. The defense had argued in court papers that Kosseim had not deviated from the standard of care in treating Hines. They noted that guidelines from a variety of medical associations have called for middle-aged African-American males like Hines to be screened for prostate cancer only when they reach 45. They also contended that Hines’ metastasis could likely not have been prevented, given the nature of his cancer. In late January, the jury in Hines returned its 11-1 verdict after roughly 12 hours’ deliberations, Troiani told The Legal Intelligencer at the time. According to Quinones Alejandro’s opinion, the jury’s verdict was for $2,859,770, with 10 percent comparative negligence apportioned to Hines. Hines was later granted a petition for delay damages totaling $184,026.71. Kosseim’s central issues on appeal involved the testimony of Hines’ urology expert, urologist Thomas Kasper of Rockville, Md. Kasper had stated at trial that the grade of Hines’ prostate cancer in 1999 would not have been the same as it was in 2001, and most likely could have been treated at a time when it was confined to his prostate gland alone if it had been caught in 1999. Kosseim argued on appeal that Quinones Alejandro should not have allowed Kasper to offer an opinion not stated to the degree of medical certainty required in order to be admissible. Quinones Alejandro noted that though Kasper had during his testimony used phrases such as “most probably” and “more likely than not,” he did on at least one occasion use the words “reasonable degree of medical certainty.” “Clearly, Dr. Kasper expressed his opinions within the required standard,” she wrote. “Nevertheless, an expert need not testify with absolute certainty or rule out all possible causes of a condition, nor must an expert testify in precisely the language used to enunciate the legal standard.” Though Kosseim had appealed to the Superior Court, the settlement means that the matter has effectively been resolved, Fitzpatrick and Stein said.

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