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$15 Million Verdict

Jun 26, 2018 | Firm News, Medical Malpractice

On June 15, 2018, Garau Germano attorneys Jerry Garau and Barbara Germano obtained a $15 million verdict for their clients at the conclusion of a medical malpractice trial in federal court in Indianapolis. Attorney Kathleen DeLaney also represented the plaintiffs at trial.

The case arose from a missed cancer diagnosis. The plaintiff was diagnosed with rectal cancer in 2009. The cancer was removed during a colonoscopy, and a subsequent transanal excision revealed no remaining disease, so there was no need for chemo or radiation. The assumption was that she was cured.

In 2014, the plaintiff began experiencing some constipation symptoms. She underwent a colonoscopy, which revealed a mass near the appendix but nothing at the site of her original cancer. The gastroenterologist who performed the colonoscopy ordered a CT scan which was performed at the CDI Center for Diagnostic Imaging location in Carmel on November 17, 2014. The radiologist reported a mass near the appendix. He left unreported a mass in the presacral space near the site of the original cancer. The mass near the appendix was surgically removed and turned out to be endometriosis. Because the mass in the presacral space was not reported by the radiologist, it remained.

In April of 2016, the plaintiff underwent another colonoscopy in response to complaints of constipation, fatigue, and bleeding. This colonoscopy revealed a mass at the rectum. A follow-up CT scan on May 5, 2016, reported an area of irregular wall thickening of the rectum which was suggestive of tumor in the presacral space and which had “increased in size since November of 2014.” The mass had been entirely outside the lumen of the rectum in 2014 but had now penetrated the wall of the rectum. Additionally, the 2016 CT exam documented the metastatic spread of the disease to the plaintiff’s lungs.

The lawsuit filed by Garau Germano alleged that the radiologist was negligent for missing the mass on the 2014 CT scan and that his miss allowed the disease to go from likely being curable to almost certainly being terminal. Garau Germano sued CDI of Indiana, LLC in order to avoid the Indiana Medical Malpractice Act’s $1.25 million cap on damages. If the suit had been brought against the radiologist, that claim would have been subject to the $1.25 million cap. In contrast, CDI was not covered by the Medical Malpractice Act. Accordingly, a claim against it was not subject to the damages cap. The Garau Germano attorneys argued that CDI was responsible for the conduct of the radiologist under a legal theory known as an apparent agency. The court agreed that the concept of apparent agency was applicable to CDI and allowed the plaintiffs to proceed against CDI under that theory.

At trial, the plaintiffs presented expert testimony from two radiologists, two surgical oncologists, and an oncologist. The defense presented the testimony of the radiologist who reviewed the scan and an expert radiologist. Before trial, Garau Germano had successfully moved to have two of the defendant’s experts disqualified on the grounds that their testimony was unreliable.

The trial lasted five days. The jury was out for 3 ½ hours before returning the verdict, which awarded $14 million to the plaintiff, and $1 million to her husband for his loss of consortium claim.