Michael Frankson, Huff Powell Bailey, Atlanta. (newingtonphotography.com)
A Fulton County jury found no liability for two doctors who were accused of failing to follow up on masses detected in a man’s kidney several years before he ultimately developed a fatal renal cancer.
Lawyers on both sides of the case said key testimony came from the decedent’s treating physician. He testified that the cancer likely developed from one of the masses detected by a CT scan several years before the man’s death—and that it could have been treated successfully.
“This was a challenge from the beginning because it started with the treating physician telling the patient something had been missed; that’s always difficult,” said Michael Frankson of Huff Powell & Bailey, who with partner Daniel Huff represented one of the doctors.
Plaintiffs attorney Philip Henry of Henry Spiegel Milling said the loss was hard to understand, given such testimony.
“The jury announced it was deadlocked on the issue of negligence and, according to discussions with the jury foreman following the defense verdict, he stated they remained deadlocked on that issue,” said Henry, who tried the case with firm colleague Wendy Huray.
“The foreman indicated they decided the case in favor of the defense based on a lack of evidence to support proximate cause,” said Henry via email. “That was unexpected because the treating physician testified that there was ‘no doubt in his mind’ that the area identified [on the earlier CT scan] was the cancer he removed over four years later.”
In an unusual turn, both doctors’ defenses were handled by separate teams from the same firm—Huff, Powell & Bailey. Huff and Frankson represented urologist Brian Hill, and Scott Bailey and Erica Jansen handled the case for radiologist William Bottoms.
The arrangement raised some logistical issues and allowed partners Huff and Bailey to watch each other in action.
“This is the first time we as a firm represented two co-defendants at trial,” said Bailey. “It was a lot of fun to see Dan and Michael represent Dr. Hill, and we naturally worked well together.”
Frankson said the co-defendants presented a unified defense, avoiding what could have been a touchy situation.
“The facts raised a potential for finger-pointing, and there could have been the possibility of a conflict, but Dr. Hill was fully supportive of Dr. Bottoms, and he was supportive of Dr. Hill,” Frankson said. “They both agreed to the representation.”
According to court filings, Shlomo Moradov was 45 when he went to his doctor complaining of urinary and abdominal pain in 2009. His primary care physician, Allan Bleich, referred him to urologist Hill, who ordered a CT scan.
The pretrial order said Hill noted the presence of a left kidney stone.
Hill expected the stone to pass and discussed treatment options with Moradov including “watchful waiting.” Moradov preferred to pass the stone, if possible, and he was given pain medication and told to contact Hill’s office if the stone didn’t pass or the pain worsened. The pain subsided, and Moradov did not contact Hill again.
As a “routine” procedure, the CT scan was forwarded to Atlanta Radiology Consultants for a formal interpretation, where radiologist William Bottoms reviewed it. Bottoms’ review identified the stone as well as several “hypodensities” that he presumed to be cysts, including one that appeared to feature lobules.
“A hypodensity with a lobulation is not a simple cyst and requires additional evaluation and follow up,” the plaintiffs’ account said. Bottoms’ report did not “affirmatively recommend additional imaging by renal ultrasound or contrast imaging to further evaluate this hypodensity,” it said.
In late 2013, Moradov returned to Bleich for a physical, having had a persistent cough for two months. A chest X-ray and CT scan indicated the possibility of widespread metastic disease.
Moradov was referred to urologist Raymond Pak, who diagnosed him with a mass in his left kidney consistent with cancer. Pak removed the kidney and found that it was cancerous; Moradov was subsequently found to have cancer in his lungs, liver and hip.
Pak reviewed the 2009 CT scan and told Moradov that the hypodensity “should have prompted additional reporting,” according to the plaintiffs’ account. “[I]f there had been proper follow-up in 2009, his cancer likely would have been diagnosed early and his only treatment likely would have been removal of his kidney.”
In 2014, Moradov sued Hill and Bottoms for medical malpractice in Fulton County State Court. In May 2015, he died at age 51. Moradov’s mother and the executor of his estate were substituted as plaintiffs in the litigation.
Frankson said there was no mediation, and the only demand was for the doctors’ insurance policy limits, which was declined.
During a one-week trial before Judge Eric Richardson, Frankson said the plaintiffs’ experts included radiologist Jeffrey Mendel from Newton, Massachusetts, and urologist Joseph Costa from Jacksonville, Florida.
Defense experts included Macon radiologist Thomas Oliver and Canton urologist Carl Capelouto.
“We went after the plaintiff’s radiology expert [Mendel] pretty hard, which can backfire if it doesn’t go well,” said Bailey in an email. “But the jury foreperson told us they thought Dr. Mendel lacked credibility, so that may have been one of the turning points in the outcome.”
Frankson said the defense emphasized the four years between Moradov’s visit to Hill and his cancer diagnosis and elicited testimony that there was no guarantee that tests in 2009 would have shown the cancer.
“The plaintiffs had to show that additional tests would have shown it would have been cancer,” said Frankson. “We’re talking about a four-year difference. … Even the plaintiffs’ expert agreed that you can’t really see cancer like that.”
On June 30, the jury retired to deliberate, only to report a deadlock after an hour and half, Frankson said.
Richardson ordered then to keep deliberating.
“That’s one of the earliest Allen charges I’ve ever seen,” said Frankson, referring to a judge’s instruction to a hung jury urging those in the minority to reconsider their position, named after the U.S. Supreme Court’s 1896 Allen v. State decision..
After a couple more hours the panel returned a defense verdict.
“The foreperson said they were still contesting negligence then decided to move to causation,” Frankson said. “They decided that the cysts [found in 2009] were unrelated to the cancer.”
“Both of the defendants were well-trained, competent and articulate in explaining their actions,” said Henry via email. “They were ably represented by the fine lawyers at Huff Powell & Bailey. I congratulate the doctors and their lawyers on their win. The case was well tried with a fair judge.”
Henry said the fact that the jury was able to overlook Pak’s testimony regarding causation “demonstrates how difficult these cases are to win.”
Bailey, in turn, lauded the plaintiffs’ counsel, who “made it a much more emotional and heart-wrenching case than it appears on paper, considering Mr. Moradov was single with no family in the U.S. There is no underestimating his ordeal, however, and the jury felt badly for his plight.”
“It’s always a relief to win, but when you do so against an exceptional trial lawyer like Phil Henry, it’s especially nice,” Bailey said. “He’s a true gentleman, and I’m glad for the experience of watching him work.”