By the third year that Mrs. W was coming to the new practice for her annual exams, she had begun exhibiting some symptoms – a persistent cough, shortness of breath, and fatigue. Again, Dr. D took a chest film, but this time he noticed an abnormality which he misdiagnosed as bronchitis or pneumonia. He put Mrs. W on antibiotics and advised her to contact him if her symptoms didn’t resolve.

When her symptoms weren’t alleviated by a course of antibiotics, the patient called the physician complaining. At this point, Dr. D referred Mrs. W to a radiologist for further imaging. The radiologist immediately reported finding a large lesion, consistent with advanced lung cancer. Additional imaging studies confirmed that Mrs. W had stage IIIB lung cancer. The patient went through 16 rounds of chemotherapy, but succumbed to the disease less than two years after she was finally diagnosed.

After Mrs. W’s death, her widower consulted with a plaintiff’s attorney and decided to sue Dr. D for the wrongful death of Mrs. W. When Dr. D was informed that he was being sued, he was disheartened but not surprised. He spoke to the defense attorney who was provided by his insurance company. The defense attorney hired an expert physician to look at the records and the chest films, and based on what the expert said, the attorney felt they had a chance at trial.


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After months of depositions and paperwork, the case finally went to trial. At trial, both sides introduced expert testimony. The plaintiff had three expert witnesses. The first, an internist, testified that in his practice, 100% of its films are read over by radiologists, and that the standard of care requires a radiologist consult whenever an abnormality is noted. The second expert was a surgeon who reviewed the chest films with the jury and explained that had the cancer been discovered the first year, it would have been surgically resectable with a cure rate of 75%. He testified that by the following year, the cure rate would have dropped to 20-40%. By the time the patient was actually diagnosed, said the surgeon, the cancer was too advanced for a surgical cure. The third expert, an oncologist, pointed out the abnormalities on the chest films, and explained to the jury the patient’s progression of lung cancer and what the treatment options might have been.