July 13, 2009

MISTAKEN CANCER DIAGNOSIS NETS PLANTIFF $1.5M

Michael Santopietro v. Elizabeth Lach-Pasko et al.: Patients who think they have been victims of medical malpractice can face a daunting battle getting the evidence – even when the evidence is literally their own flesh and blood.

Such was the case for Torrington school bus driver Michael Santopietro, who was diagnosed with lung cancer at Charlotte Hungerford hospital in his hometown. A radiologist took a tiny biopsy with a vacuum needle, inserted through Santopietro’s side, guiding the point to the small dot on his lung while using a CAT-scan. The chief of pathology at the hospital, Dr. Elizabeth Lach-Pasko, unequivocally diagnosed the biopsy material as cancerous.

In short order, surgeon Jack Thayer, at St. Francis Hospital in Hartford, operated on Santopietro, intending to locate the spot by fingertip feel and excise a small, wedge-shaped section surrounding it. But he couldn’t find the nodule. After consulting with a radiologist, Thayer decided to remove the lower lobe of Santopietro’s left lung, believing it was cancerous and that the malignancy needed to be excised.

The lung portion was sent to St. Francis’ pathology department, which determined it was non-cancerous. Thayer explained all this to his patient.

Santopietro, a smoker his whole life, was already suffering pulmonary problems and had no lung capacity to spare. He was referred to attorney Paul Edwards of the New Haven personal injury firm of Stratton Faxon, and Edwards lined up an expert in Boston to examine the pathology slides.

As recently as 1998, the Connecticut Supreme Court considered a patient’s rights to obtain medical slides from a pap smear, in Cornelio v. Stamford Hospital. Stamford trial lawyer Brendan Leydon argued that his client had only made a bailment of her tissue samples, and never gave the hospital ownership. In his Supreme Court brief, Leydon wrote: “It is axiomatic that a person’s body is their property.” He quoted 17th century British philosopher John Locke’s contention in 1698 that, “Every man has a property in his own person. This nobody has any right to but himself.”

Connecticut’s highest court was not convinced, and found that Angela Cornelio shouldn’t have expected to be able to get back samples from her pap smear. Leydon didn’t take it lightly. He buttonholed lawmakers and testified formally before the legislative Judiciary Committee, and within months a statutory amendment gave other patients the right his client was denied. Most hospitals noted the change.

But eight years later, when Edwards sought Santopietro’s pathology slides in 2007, Charlotte Hungerford officials refused. The hospital was represented by the Hartford medical malpractice defense firm of O’Brien, Tanski & Young, which invoked the Cornelio precedent.

“Most hospitals familiarized themselves with the new law. They were still under the belief that Cornelio was still the law, and it hadn’t been for eight years,” said Edwards.

He responded by filing a Connecticut Unfair Trade Practices Act suit against the hospital in April 2007. Six months later, Hartford Superior Court Judge Trial Referee Robert J. Hale ruled that the hospital was wrong. He held that, “providing the plaintiff’s pathologist with the original tissue slide required by [the new state law] is merely an entrepreneurial action” and failing to do so “is a clear violation of CUTPA.”

Edwards, in an interview, said he believes this is the first time Connecticut’s medical tissue disclosure statute was implemented by a court ruling.

Armed with the evidence, an opinion from an expert that the sample was not cancerous, Santopietro sued Dr. Lach-Pasko and the hospital. For an undisclosed sum, Charlotte-Hungerford Hospital settled, Edwards said.

Dr. Lach-Pasko was represented by attorney Eugene Cooney of Hartford’s Cooney, Scully & Dowling, who did not return calls for comment. Following a two-and a half week trial before Hartford Superior Court Judge Nina Elgo, a jury deliberated only 40 minutes before returning a plaintiff’s verdict. The man who lost part of his lung, Santopietro, was awarded $61,000 in medical bill damages, and $1.5 million in pain, suffering and other non-economic damages.

Edwards called on an expert for pathology standard of care, Dr. Steven Hajdu from California. He also used Dr. John Thayer, the cardiothoracic surgeon from St. Francis who removed the lung section.

“Dr. Hajdu testified that the fine needle aspiration biopsy slide that was interpreted as cancer should have been interpreted as showing benign atypical cells,” said Edwards.

Santopietro was 63 at the time of surgery; he is now 67, and has an actuarial life expectancy of 16 years.

Edwards didn’t ask the jury to award a specific figure for pain and suffering damages. Instead, he projected Santopietro’s life expectancy ranging from a conservative eight years to 16 more years.

“I suggested that for each year they consider a range of between $75,000 and $150,000 per year,” said Edwards. “The jury put it right in the middle.”

Despite the absence of cancerous tissue in the lung matter, Boston-based medical malpractice insurance carrier Pro Mutual made no settlement offers, Edwards said.