Legal Background

The jury heard testimony from the experts explaining the connection between radiation and ORN, and why Mr F’s risk for it had increased tremendously after the spill of cancer cells caused by the ruptured mass.

The defense argued that the patient, as a former chiropractor, had a medical background and had reviewed the report of the MRI, but had failed to exercise ordinary care by not discussing with Dr M the report’s concern about a malignancy at the base of his tongue. The defense contended that Mr F could have avoided the consequences of Dr M’s negligent failure to look at the MRI report by discussing the concerns of the report with him. The defense claimed that Mr F’s failure to discuss the report with Dr M rose to the level of comparative negligence and contributed to his own delayed diagnosis and subsequent injury. This fact should reduce any award the jury might consider, argued the defense.

The plaintiff and defense also argued about what damages would be appropriate in this case. The plaintiff asked for medical costs, as well as damages for past and future mental and physical pain and suffering. The plaintiff suggested a range of damages to the jury of perhaps $2 million to $5 million. The defense argued that $350,000 to $450,000 was appropriate.

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The jury took a mere 30 minutes to decide the case, awarding $12.5 million to Mr F, and finding no contributory negligence on his part.

Protecting Yourself

Dr M did several things wrong, but the first and the worst was to not look at the radiology report. He acknowledged getting it, but somehow, despite seeing the patient repeatedly, he never looked at the report until the damage was done.

Simply looking at the report when it had come in, or even when the patient was there with him, could have raised the issue of possible cancer and avoided the terrible consequences caused by the delay in this case.

Had Dr M actually looked at the MRI, he would not have concluded that the lump was a cyst and would have handled it differently. In addition, in his report, the radiologist had originally noted concern about the second spot, at the base of Mr F’s tongue, which wasn’t discovered by Dr M until the surgery in February.

The bottom line – if a patient has a diagnostic test or scan, it should be reviewed. Overlooking it can be a very costly mistake.