Date of Verdict: March 5.
Court and Case No.: C.P. Philadelphia No. 101103488.
Judge: Leon Tucker.
Type of Action: Medical malpractice.
Injuries: Carcinoma, amputation.
Plaintiffs Counsel: Emmanuel O. Iheukwumere, Emmanuel Law Firm, Philadelphia; Tai Y. Wong, Law Offices of Tai Y. Wong, Philadelphia.
Defense Counsel: Robert E. Dillon and Tricia M. Ambrose, Naulty Scaricamazza & McDevitt, Philadelphia, for Peter L. King; Alan S. Gold and Alexander R. Ferrante, Gold & Ferrante, Jenkintown, Pa., for Robert J. Wiemer; Frank A. Gerolamo, Gerolamo McNulty Divis & Lewbart, Philadelphia, for Mercy Hospital of Philadelphia, Mercy Health System and the Center for Wound Healing and Hyperbaric Medicine at Mercy Health Center.
Plaintiffs Experts: Jack B. Gorman, podiatrist, Newtown, Pa.; Dr. Andrew M. Schneider, oncologist, Tamarac, Fla.
Defense Experts: Dr. William H. Sharfman, oncologist, Baltimore; Lesly D. Robinson, podiatrist, Philadelphia.
Comment: According to the pretrial memorandum of plaintiff Margaret Wilson, on Oct. 7, 2007, she presented to the office of Dr. Peter L. King, of Mercy Hospital in Philadelphia, with complaints of a plantar ulcer on her left foot. Wilson, who was in her 70s at the time, treated numerous times with King over the next 10 months. She treated with bone scans, antibiotics, wound cultures and debridements. She was also treated at the Mercy Hospital Wound Center. In her pretrial memo, Wilson contended that the ulcer continued to grow during the treatments.
On July 10, 2008, the ulcer was found to be necrotic, with moderate damage and an odor. After a debridement, she presented to Dr. Robert J. Wiemer of Mercy Hospital. Wilson treated with Wiemer numerous times over the next six months. Wiemer recommended additional debridements, and noted swelling, warmth and lower extremity pain. He also performed hyperbaric oxygen therapy at the wound center.
On Nov. 24, 2008, a pathology report interpreted the results of a biopsy as showing verrucous carcinoma, which is a type of squamous cell carcinoma. On Dec. 5, 2008, Wilson consulted another doctor at the University of Pennsylvania Department of Dermatology. Wilson underwent another biopsy Jan. 7, 2009, which showed well-differentiated squamous cell carcinoma.
In January 2009, Wilson underwent a partial amputation of the left foot.
Wilson sued King, Wiemer, Mercy Hospital of Philadelphia, Mercy Health System and the Center for Wound Healing and Hyperbaric Medicine at Mercy Health Center.
She alleged that the doctors failed to timely diagnose her ulcer, perform a biopsy or refer her to another physician who would perform a biopsy.
King, in his pretrial memo, said Wilson had a history of uncontrolled Type II diabetes, and that the ulcer was consistent with a diabetic ulcer. He further contended that his treatment was appropriate for a diabetic foot ulcer and that he made appropriate recommendations for treatment in October 2008, when the ulcer began to change appearance.
In his pretrial memo, Wiemer contended that he correctly treated Wilson, and that Wilson appropriately underwent a biopsy when the ulcer began to change appearance. He further contended, in his memo, that the initial biopsy did not show cancer, and that she subsequently underwent a deeper biopsy. He also contended that while the doctor who reviewed the biopsy did not find cancer, he sent Wilson to another doctor who then interpreted the slides as showing cancer. Wiemer further said that verrucous carcinoma is a superficial wound cancer that develops in ulcers and is extremely rare.
Mercy, in its pretrial memo, contended that the doctors and medical centers acted within the standard of care and worked to properly diagnose and treat the condition. The hospital further contended that the ulcer was consistent with a slow-healing diabetic ulcer in an elderly patient with a past medical history of diabetes, hypertension, congestive heart failure, coronary artery disease and blood clots. The infections, the memo said, were properly treated with antibiotics, and Wilson responded well to the hyperbaric oxygen therapy, which reduced the size of the ulcer. Once the ulcer changed appearance, a biopsy was performed and Wilson was properly diagnosed, the memo said.
On Jan. 19, 2009, Wilson underwent a transmetatarsal amputation of the left foot. She remained in the hospital until February 2009, and was released to home care. On March 11, 2009, she underwent a skin graft that was performed by Wiemer.
Wilson contended that the allegedly delayed diagnosis led to invasive and metastatic skin cancer. She further contended that her life expectancy had lowered, and that she had an increased chance of reoccurrence. She also contended that she continued to have wound infection, abscesses and osteomyelitis, and will require future operations, including a metatarsectomy.
Wilson also argued in her memo that she suffered pain and suffering as a result of the treatment, and that she has difficulty walking. She also claimed to have a medical lien of $192,492.
The defendants contended that Wilson would have been required to undergo an amputation even if she had been diagnosed earlier.
Wiemer, in his memo, further contended that Wilson subsequently showed no signs of cancer, and that she was unable to walk without a walker prior to the treatments due to unrelated underlying medical problems.
After a seven-day trial, the jury found in favor of the plaintiff against King, and awarded her $350,000 in past medical expenses, as well as $750,000 in noneconomic damages. Wiemer settled out of the case for a confidential sum during trial. The jury also found in favor of Wiemer and Mercy Hospital, according to attorney Emmanuel O. Iheukwumere.
“With the right facts and the right plaintiff, a jury will award substantial damages even if the plaintiff is elderly and advanced in age, as happened in this case,” Iheukwumere said. “The notion by some attorneys, especially defense counsel, that lack of economic damages such as lost and future loss of income, and advancing age equals low value for a case is outdated and antiquated.”
— Max Mitchell, of the Law Weekly