Date of Verdict:
Court and Case No.:
C.P. Luzerne County No. 6653 of 2015.
Lesa S. Gelb.
Type of Action:
Melissa A. Scartelli and Paul Olszewski Jr., Scartelli Olszewski, Scranton.
Bruce L. Coyer and Kelly E. Hadley, O’Malley, Harris, Durkin & Perry, Scranton.
Daniel Feingold, colon and rectal surgery, New York; Robert Perkel, family medicine, Philadelphia; Thomas Cataldo, colon and rectal surgery, Boston.
Steven Fassler, colon and rectal surgery, Abington.
On June 17, 2013, plaintiff Joseph Michael Shimko, 17, was diagnosed with hemorrhoids at Geisinger-Kistler Clinic, in Wilkes-Barre. He had presented to the facility with bilateral knee pain and what he believed to be hemorrhoids-related symptoms. He was seen by a second-year resident, who, upon diagnosing him with hemorrhoids, prescribed a suppository (he was also diagnosed with bilateral patellar tendonitis). The physician told him to return for follow-up care if his symptoms did not improve.
For the next 14 months, Shimko continued to take the suppository and experienced what he believed to be hemorrhoids-related symptoms, which waxed and waned. This included a lump on his buttocks that swelled and drained.
In February 2014, Shimko’s mother contacted the Geisinger-Kistler Clinic to request a refill for the suppository prescription. According to the teen, physician Stephen Evans, the supervisor to the second-year resident who had diagnosed hemorrhoids, refilled the prescription. Evans also allegedly told his staff to make an appointment with a colorectal surgeon for Shimko, but the staff did not do so.
Six months later, on Aug. 31, Shimko, unable to sit due to severe pain in his tailbone/buttocks, presented to Geisinger South Wilkes-Barre urgent-care facility, where he was diagnosed with a pilonidal cyst (a cyst on the tailbone).
Shimko sued the Geisinger-Kistler Clinic and Evans, alleging that he was misdiagnosed in June 2013 with hemorrhoids, when in fact he was suffering from an abscess, which later evolved into a complex pilonidal cyst.
Shimko’s expert in family medicine faulted the second-year resident for failing to perform a rectal exam on Shimko. Additionally, the physician failed to provide education to the teen about what a hemorrhoid is, where it was located, and what to expect from taking the rectal suppository. Since Shimko was a minor, the resident should have instructed his mother about his diagnosis and treatment; instead, his mother was in the waiting area while Shimko was seen by the doctor, his counsel maintained.
Shimko’s expert went on to criticize Evans for failing to immediately review the resident’s exam of Shimko, and had he done so, he would have discovered that no rectal exam had been performed. Two days after Shimko had seen the resident, Evans electronically approved the resident’s evaluation, and again missed the opportunity to see that the resident had failed to perform a physical exam. These were violations in the standard of care, according to the expert.
Shimko’s counsel further faulted the clinic’s staff for failing to schedule a colorectal-surgeon appointment for Shimko and for failing to contact him and his family about it.
Shimko’s expert in colorectal surgery (Daniel Feingold) opined that, if the abscess had been properly diagnosed on June 17, treatment would have been a single procedure consisting of draining and removing the abscess. Instead, the abscess went undiagnosed for 14 months, during which time it grew into a complicated pilonidal cyst that developed multiple sinus tracks, and became much more difficult to remove and heal, resulting in Shimko having to undergo eight procedures/surgeries and suffer from permanent effects.
(Prior to trial, the clinic stipulated to negligence regarding Evans’ failure to supervise the resident and the clinic staff’s failure to schedule a colorectal-surgeon appointment.)
The clinic’s expert in colorectal surgery agreed that an examination should have been performed prior to any diagnosis being made; however, the failure to diagnose in June 2013 was not the cause of Shimko’s recurring pilonidal cyst. According to the expert, Shimko had an indolent cyst, which was diagnosed in August 2014.
The expert maintained that due to Shimko’s anatomy—the fact that he has excessive hair growth in his tailbone area and a deep natal (gluteal) cleft—he is predisposed to pilonidal cysts and complications. The expert concluded that the alleged 14-month delay in the diagnosis of the cyst had no bearing on the outcome of Shimko’s condition, and further opined that the said failures were not the cause of Shimko’s recurrent pilonidal cysts. In fact, 30 to 35 percent of individuals who develop pilonidal cysts have recurrence of their cysts notwithstanding timely treatment.
The clinic’s counsel also maintained that Shimko was contributorily negligent, because he deferred having a rectal exam on June 17, and failed to return for follow-up care with the clinic, as instructed, when his symptoms continued.
Shimko’s counsel countered that, as a minor, he was not legally permitted to defer a rectal exam, and that only his mother had the authority to do so. Shimko’s other expert in colorectal surgery disputed the clinic’s expert’s theory that Shimko was naturally predisposed to abscesses/cysts. The expert reiterated that Shimko had an abscess on June 17, 2013, which evolved into a complex pilonidal abscess over 14 months.
On Aug. 31, an incision and drainage of the abscess were performed. On Sept. 8, Shimko presented to a colorectal surgeon, who performed a drainage and prescribed antibiotics due to an infection. In November, he underwent surgery to remove the cyst. In December, Shimko was hospitalized for multiple days after undergoing another surgery, in addition to an insertion and then removal/replacement of a wound VAC. In February and in August 2015, Shimko underwent two additional surgeries to address the cyst. He continued with wound care, and from January 2016 through October, the wound had completely healed. On Oct. 31, 2016, Shimko went back to the doctor and reported that the problem had manifested itself again two days earlier. In November, plastic surgery was performed in which skin was grafted and a skin flap created to cover the large area of the tailbone/buttocks. No further treatment was rendered.
Shimko testified about how the majority of his treatment took place during college, which created multiple challenges. He was unable to handle the rigorous academic schedule, which forced him to change majors, from aerospace engineering to engineering technology. There was a period when he had to deal with wound packing and dressings. He discussed the embarrassment he experienced from all of this, and the ongoing emotional distress as a result of his disfigurement. According to Shimko, despite all this, he rarely missed a day of work (he had a job at a national home-improvement and appliances retailer and at a school district). He sought damages for past and future pain and suffering.
The clinic cited Shimko’s testimony in which he did not earn the minimum calculus grade required in order for him to stay in the aerospace-engineering program. Shimko also testified that there were other requirements he was not aware of at the time that prevented him from continuing in this program.
The jury found that Evans and the Geisinger-Kistler Clinic were negligent and their negligence was a factual cause of harm to Shimko, who was determined to receive $10 million.
This report is based on information that was provided by plaintiffs and defense counsel.
—This report first appeared in VerdictSearch, an ALM publication. •