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1 year delay before pt. notified cancer diagnosed.

CASE ON POINT: Columbia Rio Grande Healthcare v. Hawley, No. 12-03-427-CV (Tex.App. Dist. 13 3/23/2006) -TX

CASE FACTS: On November 22, 2000, Alice Hawley presented to Dr. Armando Arechiga, her primary care physician, complaining of cramps, nausea, and vomiting. Dr. Arechiga referred her for a Doppler exam. Upon learning the results of the exam, Dr. Arechiga sent the patient directly to Rio Grande Regional Hospital for treatment of a perforated diverticuli. On November 23, 2000, Dr. Jesus Rodriguez performed a resection of the patient's colon because of the ruptured diverticuli. During the surgery, Dr. Rodriguez examined the patient's liver and detected no abnormalities. The patient was discharged from the hospital on November 29, 2000. The excised portions of the patient's colon were sent to Dr. Jose Valencia, a pathologist, whose office was located in the hospital. Dr. Valencia's examination of the tissue specimen revealed that the patient had cancer. Dr. Valencia diagnosed the patient as having adenocarcinoma of the colon with four of five lymph nodes being positive. Dr. Valencia characterized the cancer, in terms of severity, as "Stage 3" or "Duke's C." The patient did not learn that she had cancer until October 2001, almost a full year after she was officially diagnosed. By that time, she had an inoperable tumor in her liver. The tumor was approximately the size of a softball. The patient was treated with chemotherapy. Although the patient's initial response to the chemotherapy was excellent, the cancer was too far advanced to be cured. The patient and her husband brought suit against the hospital alleging that the hospital was negligent in failing to timely and properly convey the cancer diagnosis to the patient and her surgeon, Dr. Rodriguez, and that by the time the patient became aware of her condition she had an "inoperable tumor" in her liver. Treating physicians continued treatment in the hope of prolonging the patient's life for as long as possible. On February 26, 2002, the patient and her husband sued the hospital. They alleged that the hospital was negligent in failing to timely and properly convey the cancer diagnosis to the patient and her surgeon, Dr. Rodriguez, and her admiring physician, Dr. Arechiga. They also complained that the hospital tailed to follow its own policies and protocols. After a jury trial, the jury returned a unanimous verdict for the plaintiffs finding that the negligence of the hospital was the direct and proximate cause of the injuries and damages sustained. The hospital appealed.

COURT'S OPINION: The Court of Appeals of Texas affirmed the judgment the trial court entered on the unanimous jury verdict against the hospital. The court overruled all issues raised by the hospital in its appeal. Further, it rejected the hospital's contention that the trial judge had given an erroneous charge to the jury which was prejudicial to the hospital. The court concluded that the hospital failed to produce any precedent from a Texas court endorsing a loss-of-chance instruction, much less any precedent holding that a trial court abused its discretion by refusing to give such an instruction. The court went on to state that the question it was to answer was not whether the loss-of-chance instruction should have been rejected or endorsed. It perceived its responsibility as being only to decide whether the trial judge abused his discretion by failing to include it in his charge to the jury in the case. The answer was NO!

LEGAL COMMENTARY: Although Dr. Tucker testified on behalf of the hospital that Drs. Archeiga and Rodriguez should have followed up on the pathology report, his testimony did not tend to establish that the hospital's negligence had been cut off by doctors' failure to act. The court noted that Dr. Tucker never acknowledged that the hospital had been negligent, much less that its negligence had been superseded by something else. At best, his testimony suggested that multiple factors played into the communications failure that caused the notification delay that led to the plaintiffs' injuries. To the extent that the hospital's expert witness, Dr. Tucker, attempted to implicate Drs. Arechiga and Rodriguez in the delay, his testimony was vague and speculative on the issue of causation, suggesting only that the doctors' failures to follow up on the report were unforeseeable and arguably contributed to the delay in notification. There was no evidence that the forces created by the hospital's negligence had come to rest. Nor was there any evidence that the causal connection between the hospital's negligence and the plaintiffs' injuries had been destroyed by an act or omission of a third party that became the immediate cause of the plaintiffs' injuries. Equally remarkable was the failure of the evidence to work in any meaningful way toward a finding of a new and independent cause of the plaintiffs' injuries.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital taw throughout the United States. In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals, A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Hospital Law Case of the Month
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Date:Apr 1, 2006
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