Hibbing jury awards $1.1M to med-mal plaintiff dying of cancer
A Hibbing jury recently awarded more than $1 million in a medical-malpractice case brought by a 61-year-old retired Cargill executive whose prostate cancer metastasized and became terminal.
A routine cancer-screening test in May 2001 demonstrated that Thomas Fritz had elevated levels of prostate specific-antigens (PSAs), a possible indicator for the presence of prostate cancer. But, according to Fritz, the results of the PSA testing and the need for further testing were not communicated to him. When, a year later, Fritz’s PSA count came back even higher during his annual screening, further tests were conducted. Fritz subsequently learned that he had prostate cancer and that it had become inoperable because it had metastasized to the bone.
Fritz and his wife Pamela sued the doctor and the doctor’s clinic, arguing that the defendants’ negligence had led to a delay in treatment that caused the cancer to become terminal.
After a three-day trial, the St. Louis County jury awarded $1.5 million to the plaintiffs, breaking the award down as follows: $150,000 for past pain and emotional distress, $750,000 for future pain and emotional distress and $600,000 to Fritz’s wife for loss of consortium. The verdict was reduced $375,000 for the 25 percent fault that the jury attributed to Fritz.
The $1.1 million recovery in this case is impressive — particularly given the conservative reputation of northern Minnesota juries and the fact that the plaintiffs did not request any economic damages.
Duluth Attorney Paul F. Schweiger, who represented the plaintiffs, acknowledged that the larger verdicts often come in cases where there are significant economic damages such as lost wages or massive medical bills.
“You would typically get a higher verdict if you can show past and future economic damages rather than the subjective area of how much pain, emotional distress and knowing when you are going to die are worth,” he acknowledged.
Schweiger credits an understanding and attentive jury for what he calls a “fair and reasonable” award. “I just discussed with [jurors] what it might be like for [Fritz], who worked so hard throughout his career, and for his wife of 40 years, to finally retire and look forward to retirement ... and instead to have to wait for [Fritz] to die a painful death.”
Regular screenings
Fritz had a friend who had discovered that he had prostate cancer through a PSA test, so Fritz was very careful to have the test performed every year.
“When the [PSA] test was first offered in the 90s, the insurance companies were not paying for it, so [Fritz] would pay for it himself,” Schweiger observed.
In May 2001, the lab to which Fritz’s blood sample from his PSA test had been sent returned a report to Fritz’s doctor demonstrating that Fritz had a PSA level of about 4.3. A PSA level above 4.0 indicates the need for further testing because of the possibility of prostate cancer.
Fritz said he never heard anything back from the doctor on the test. A note by the nurse on the lab report indicted that she called the patient after the report came in, but there was no record of what was discussed and the nurse had no recollection. The defense argued at this point the PSA level result would have been discussed, but Fritz disputed this assertion.
In June 2002, Fritz was told after his annual screening that the lab report demonstrated a PSA count of about 4.6 and that he needed to come in for further testing. A biopsy confirmed that Fritz had prostate cancer. However, the cancer at this point had already metastasized to the bone and there was noting that could be done. Fritz discovered he had a terminal condition and might live anywhere from two to four years.
The plaintiffs alleged that Fritz’s cancer could have been treated with a simple surgical procedure at the time of the 2001 test, but the doctor’s failure to communicate the results of that test and the importance of further testing had led to the cancer not being discovered and metastasizing.
Although Fritz currently has no physical pain from his condition, he and his wife have to live with the specter that within the next two years or so he may suffer a painful and unpleasant death, Schweiger observed. “Every day he suffers a pain or wakes up not feeling well he has to wonder, ‘Is this it? Has it begun?’”
Trying the case
Schweiger said that Fritz and his wife, who provided the key testimony as to damages, each testified for under half an hour.
“Fritz was on the stand less than 30 minutes,” Schweiger observed. “He gave really powerful, compelling testimony that came from the heart telling what it was like to live with that death sentence hanging over his head. It wasn’t dramatic — it just kind of came out of him naturally. And I think that it persuaded the jury that this fellow has been damaged in a bad way.”
The defense cross-examined Fritz on the issue of whether he knew or should have known that further testing was warranted after the 2001 lab report.
In building his case, Schweiger took great pains to explain step-by-step the importance of prostate testing and the need to be informed of and to take action if the results came back abnormal. “I think the jury was really interested in learning more about prostate cancer,” he stated. “We took the jury basically through where the prostate gland is, why men have it, why we go through these awful digital rectal exams and what a PSA test is. They really were an attentive jury and they really understood two things — that this was curable and that [Fritz] is going to die horribly because of ... what is essentially a failure to communicate.”
To establish causation, Schweiger called an oncologist to testify that Fritz’s condition would have been treatable if the prostate cancer had been diagnosed in May 2001.
Subdued reaction
Schweiger said his clients’ reaction was subdued to the million-dollar award, which is to be expected given all they are going through now. Schweiger himself acknowledged it was a good verdict, but said he had hoped the jury would come back with an even higher award, given the circumstances of the case. (He had asked the jury for $3 million.)
“I suggested that there was no amount of money that really could compensate [the plaintiffs], but our system requires that if they find the doctor negligent that they assess fair and adequate compensation. I said if there ever was a case that deserved over $1 million, it was this one.”
There were no settlement offers at any point in the case, according to Schweiger. “The defense was never willing to talk to us about settlement. The defense did not want to talk settlement or go to ADR.”
Schweiger said that since verdict has received some publicity, he and his clients are hopeful that it will serve as a reminder to the public of the importance of following up with doctors after tests are taken and making sure results of tests are addressed.
— Mark A. Cohen
