Date of Verdict: October 5.
Court and Case No.: C.P. Philadelphia No. 100103369.
Judge: Susan I. Schulman.
Type of Action: Medical malpractice.
Injuries: Metastasizing of cancer throughout the body.
Plaintiffs Attorneys: Marsha Santangelo, the Beasley Firm, Philadelphia.
Plaintiffs Experts: Ronald Leuchter, Santa Monica, Calif., gynecologic oncologist; Daryl Fanney, Virginia Beach, Va., radiologist; Alan Fink, Greenville, Del., neurologist.
Defense Counsel: Suzanne M. Bachovin, Christie, Pabarue, Mortensen & Young, Philadelphia; Gary Samms and Jacqueline S. Roe, Obermayer Rebmann Maxwell & Hippel, Philadelphia; Thomas M. Savon and Kenneth Fair, Naulty, Scaricamazza & McDevitt, Philadelphia.
Defense Experts: Thomas Randall, of Joan Karnell Cancer Center, Philadelphia; Gregory J. Schwartzman, Media, Pa., radiologist; Eric M. Rubin, Media, Pa., radiologist.
Comment: A Philadelphia jury awarded a 70-year-old terminally ill woman nearly $2 million after finding her oncologist at Fox Chase Cancer Center failed to timely diagnose a return of ovarian cancer.
In Forlano v. Bergman, a jury found Dr. Cynthia Bergman of Fox Chase 100 percent liable for failing to diagnose Lynn R. Forlano’s return of ovarian cancer between 2004 and 2008.
The jurors absolved of any liability four radiologists who were sued along with Bergman, Fox Chase, Holy Redeemer Health System and Jeanes Hospital. Those radiologists had issued reports to Bergman on Forlano’s CT scans over the years. It was admitted at trial that Fox Chase is vicariously liable for Bergman, said Forlano’s attorney, Marsha Santangelo of the Beasley Firm. She said Holy Redeemer was voluntarily dismissed from the case before trial and Jeanes was absolved of liability when its radiologist was found not liable.
At the time the pretrial memorandums in the case were filed in March, Forlano was expected to live for one more year given her ovarian cancer had metastasized to her spine and other areas of the body, according to court documents. Santangelo said that prognosis is now at a few months. She said her client was too ill to testify at trial and instead testified via video.
After finding Bergman liable October 5, the 12-member jury voted 11-1 to award Forlano $171,455 in past medical expenses, $750,000 in past non-economic damages and $750,000 in future non-economic damages. The jury also awarded $300,000 to Forlano’s husband, Nicholas, for loss of his wife’s consortium. The total verdict came to a little more than $1.97 million. The demand going into trial was $2.75 million, according to the verdict sheet and court papers.
Forlano was diagnosed with stage II tubo-ovarian cancer in 1999. She underwent surgery and post-operative chemotherapy with no evidence the cancer remained. Forlano continued routine checkups with her gynecologic oncologist at Temple University Hospital until that doctor moved out of state in 2000. At that point, Forlano transferred her care to Fox Chase and Bergman.
From 2000 until 2008, Forlano had regular visits with Bergman. Physical examinations and radiology imaging studies remained normal until 2004. That is when Bergman first documented that she was able to feel a “round fullness” when performing a pelvic and rectovaginal exam on Forlano. A CT scan confirmed the presence of a mass in the pelvic cul-de-sac, which is the space between the rectum and vagina, according to Forlano’s pretrial memorandum.
According to Forlano’s court documents, she was consistently told at each annual visit that the mass remained the same and was most likely fluid and nothing to worry about. She also argued that the radiology imaging showed a lesion that was never identified in reports by the radiologists as suspicious for cancer, according to court papers.
In August 2008, Forlano was admitted to Holy Redeemer for a blood clot in her leg. It was at that time the attending physician saw the mass on imaging studies and recommended a biopsy. A biopsy was performed and it showed a recurrence of tubo-ovarian cancer, according to court papers.
After receiving chemotherapy to shrink the tumor, surgery was performed, but the tumor was unresectable. In early 2011, Forlano began experiencing back pain and tests showed she had metastatic lesions on her spine, sternum, pelvic bone, arm and lung, according to court documents.
Bergman’s attorney, Suzanne M. Bachovin of Christie, Pabarue, Mortensen & Young, argued in court documents and at trial that her client repeatedly informed Forlano of the mass, its potential to be cancer and the fact that Forlano should get a biopsy. Bergman argued that Forlano refused to get the biopsy because she was dealing with other medical issues.
“All diagnostic studies were discussed with Mrs. Forlano and the recommendation was made to undergo an exploratory laparotomy for the purpose of performing a biopsy of the mass and investigating it for recurrent cancer,” Bergman said in her pretrial memorandum regarding the 2005 radiology report. “Mrs. Forlano refused to have the surgery due to her other medical problems at the time.”
The 2005 radiology imaging was done when Forlano was admitted to the hospital for endocarditis, according to court documents.
Bachovin said she has already filed post-trial motions and plans to appeal on “numerous evidentiary issues and rulings.”
Santangelo said her general theory at trial was that Forlano was repeatedly reassured the mass was just fluid and was nothing to worry about. Santangelo said Forlano was never told about the growth of the mass over the years.
Bergman’s theory at trial, according to Santangelo, was that Forlano was told from the outset the mass could be cancer but refused to get a biopsy. Santangelo said that theory was not supported by the medical records.
“It was really a matter of credibility between the patient and Dr. Bergman,” Santangelo said.
Santangelo said the radiologists argued at trial that their reports to Bergman included everything the doctor needed to diagnose the cancer.
The trial opened September 24 and went to the jury October 4. The jury deliberated for about six hours October 4 and 5, asking many questions, Santangelo said. She said the final question was the date at which to split past and future non-economic damages.
Santangelo said there was never an offer from any of the defendants before or during trial.
Gary Samms and Jacqueline S. Roe of Obermayer Rebmann Maxwell & Hippel represented defendant radiologist Diane DiGirolamo of Holy Redeemer. Thomas M. Savon and Kenneth Fair of Naulty, Scaricamazza & McDevitt represented defendant radiologist Howard C. Hutt and Jeanes Hospital. Along with Bergman, Bachovin also represented Fox Chase radiologists Arthur Magilner and Barton Milestone.
— Gina Passarella, of the Law Weekly