A Palm Beach Gardens gastroenterologist defeated a multimillion-dollar claim that he rushed through a patient’s colonoscopy and missed burgeoning cancer.
Dr. David Vastola’s attorneys won the Aug. 15 defense verdict by arguing the patient had an atypically fast-developing disease, which led Vastola to find no cause for concern during a 2011 colonoscopy and then discover advanced-stage colon cancer in 2013.
“As I told the jury in the closing, and as most people understand, cancer doesn’t necessary follow any particular guidelines or rules,” said defense attorney Keith Puya of the Law Offices of Keith J. Puya in Palm Beach Gardens. “Cancer behaves and acts differently with everybody.”
Vastola’s patient, Zaven Kazandjian, underwent colonoscopies every few years starting in the 1990s because he tended to form polyps more often than the average person, Puya said. Doctors typically recommend colonoscopies about once a decade because colon cancer is usually slow to form.
Kazandjian had a 2008 colonoscopy with a different doctor in which a few benign polyps were discovered and removed, none of them in the part of the colon where his cancer ultimately developed, Puya said.
The plaintiffs argued by the time Kazandjian went in for his 2011 procedure, he had cancer in the transverse colon, or the middle part of the large intestine.
Puya said that part of the colon is relatively easy for doctors to see because it’s the straightest, with few “nooks and crannies” that could make cancer tough to detect.
“Mr. Kazandjian, according to the plaintiff, had anywhere from a Stage 2 to a Stage 3 disease in October 2011, and in order for the cancer to be seen, it has to be at least one centimeter in diameter,” Puya said. “So our argument was there was nothing there to see.”
Kazandjian’s attorney, Gary Roberts, argued Vastola could not have done a thorough examination in part because the colonoscopy only lasted around eight minutes. But Puya argued colonoscopies that don’t turn up any polyps are typically that quick, including one of Kazandjian’s previous colonoscopies, which was 10 minutes long.
Plaintiffs experts testified it typically takes five years for tissue that lines the bowel to develop and form a polyp, then another three to five years for that tissue to evolve into a malignancy. Roberts argued it didn’t make sense his client would have developed full-blown cancer in less than two years. Kazandjian now has terminal Stage 4 cancer that has spread to his liver.
“What’s interesting about it is that the plaintiffs themselves seems to suggest that since the colonoscopy was presumably normal in 2008, then if he had Stage 2 or Stage 3 disease in 2011 that was missed, then by their own argument, they acknowledge that this cancer grew much faster than what is typically the behavior of colon cancer,” Puya said.
At trial before Palm Beach Circuit Judge David French, the plaintiff didn’t ask for any specific damages. Roberts presented evidence of $1.1 million in medical bills and left it to jurors to determine the amount of other damages they might award Kazandjian, who the plaintiffs argued would have lived around 13 years more if the cancer were caught early.
The jury took about 1.5 hours to reach a verdict in favor of the defense.
Puya, who was joined on the case by colleague Hector Buigas, said he felt for Kazandjian and his family.
“There’s never any good ending to these stories,” Puya said. “It’s just something that can happen to anybody.”
Roberts, of Gary Roberts & Associates in West Palm Beach, said in an email he plans to file a motion for a new trial “based on defense expert witness misconduct, a clearly erroneous jury instruction specially crafted by the court in violation of a Supreme Court case and for other reasons.” He declined to comment further.
Susan Ramsey of Roberts’ firm joined him on the case.
Case: Zaven Kazandjian et al v. David Vastola D.O. et al
Case No.: 2015-CA-005637
Description: Medical malpractice
Filing date: May 19, 2015
Verdict date: Aug. 15, 2017
Judge: Palm Beach Circuit Judge David French
Plaintiffs attorneys: Gary Roberts and Susan Ramsey, Gary Roberts & Associates, West Palm Beach
Defense attorneys: Keith Puya and Hector Buigas, Law Offices of Keith J. Puya, Palm Beach Gardens
Verdict amount: Defense verdict