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Fifth Circuit Upholds Government’s Liability for Failure to Diagnose Cancer – Ellis et al. v. U.S.

As a Pennsylvania medical negligence lawyer, I was interested to see a recent ruling upholding damages for a family that lost someone when her cancer was misdiagnosed. In Ellis et al. v. United States, the husband, children and mother of Melissa Busch sued the federal government for failing to timely follow up on medical problems that ultimately were revealed to be from a form of cancer that eventually killed her. At the beginning of her medical saga, Busch was married to a member of the U.S. military, giving her access to military healthcare in San Antonio. Military doctors recommended a followup but failed to schedule it, and she eventually lost her military benefits when she divorced. A civilian hospital eventually diagnosed a rare cancer, which eventually killed her at age 33. The federal government lost at trial and appealed as to her and the civilian hospital’s liability, but the Fifth Circuit upheld liability.

Busch hurt her foot in 1996 while playing with her children and saw doctors at Brooke Army Medical Center. She returned in early 1997, complaining that the injury wasn’t healing despite her compliance with her medical instructions. BAMC ruled out a stress fracture and recommended an orthopedic consultation, but an appointment was not available. BAMC told her she would go on a waiting list and receive a call; no such call ever came, though apparently she was scheduled for an appointment 18 months later and not notified. Busch soon divorced her husband and lost access to BAMC. After the foot was reinjured later in 1997, she visited Northeast Methodist, a civilian hospital, which X-rayed her foot and found a “retained foreign body,” but neglected to tell her. She didn’t seek more treatment for the foot until 1999, when she saw a podiatrist who finally diagnosed a tumor and synovial sarcoma. Due to the delay in diagnosis, she required aggressive treatment including a foot amputation and multiple rounds of chemotherapy and radiation (requiring her to terminate a pregnancy). She died in October of 2005 at 33.

Before her death, Busch sued NE Methodist for failing to follow up on the “retained foreign body” X-ray; that was settled out of court. She later sued BAMC for failing to follow up on the orthopedic appointment; her mother took over after she died. After a four-day bench trial, the court found the government liable for failing to arrange the orthopedic appointment or explain the urgency of the situation. It declined to find Busch comparatively negligent for failing to follow up. It also found no evidence that NE Methodist had any responsibility for the failure to diagnose. It awarded “significant damages” but capped the household damages at $250,000, pursuant to a Texas noneconomic damages cap.

The family appealed the damages cap; the government appealed the finding of no liability for Busch or NE Methodist. The Fifth U.S. Circuit Court of Appeals found for the family on both counts. On the liability of NE Methodist, the Fifth agreed with the trial court that the treating doctors’ failure to disclose the X-ray results did not breach the standard of care. Furthermore, evidence at trial showed the real problem was BAMC’s failure to diagnose in 1997. The court next found no error in the trial court’s failure to hold Busch comparatively negligent. Patients have a responsibility to cooperate and follow up in their care, but the Fifth agreed with the district court that Busch met the standards of a reasonably prudent person with her medical knowledge. Not only was the possibility of cancer never mentioned, but in fact, Busch was repeatedly told the injury was only a contusion. However, the court found that the trial court erred in limiting household services damages to the Texas noneconomic damages cap. Household services are treated as economic damages in Texas, but need not be proven “with mathematical precision,” the appeals court said. It remanded that issue for further proceedings.

As a Pennsylvania medical malpractice lawyer, I’m pleased to see the entire ruling. Comparative fault has a role in our justice system, of course, but defendants often also use it as a way to essentially blame the victim. I’m also particularly pleased to see a ruling establishing that the Texas cap on noneconomic damages does not include household services. These are things that a deceased person would normally have done around the house, including cleaning, childcare, yard work, repairs and more. All of those are very clearly things that cost money to replace. As a Philadelphia birth injury lawyer, I appreciate the role of noneconomic damages as well — but it’s important that courts know the difference.

Rosenbaum & Associates represents clients throughout eastern Pennsylvania who have suffered serious injuries or lost a loved one because of a medical professional’s or organization’s negligence. To tell us your story and learn more about your legal rights, call us today at 1-800-7-LEGAL-7 or send us an email.

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