Undisclosed Cancer Diagnosis Lawsuit

Gustafson v. United States of America

Brain CTThis wrongful death claim was filed in the District Court of Maryland after physicians at various VA Medical Centers failed to inform a patient about his cancer diagnosis. It was filed in Health Claims Arbitration on February 7, 2018, and it is the 67th medical malpractice case filed in Maryland this year.

Summary of Plaintiff's Allegations

A man presented to his doctor at the VA Medical Center in Perry Pointe, MD with complaints of blood in his urine. The doctor ordered a Volumetric CT scan, which revealed a soft tissue mass in the kidney. Although the CT results were placed in the man's records, no one at the VA Medical Center informed him about the kidney cancer. The man went back to three different VA Medical Centers over the next several months, and still, no one gave him any information about his cancer diagnosis.

Nearly five months after his CT scan, the man presented to the VA Outpatient Clinic in Viera Beach, Florida with continued complaints of blood in his urine. He underwent a second CT scan at the Outpatient Clinic, which his physicians compared to his initial CT scan. At this time, the man was first informed that he had kidney cancer. By then, his cancer had spread to the entirety of the right kidney and into the right renal pelvis.

The man underwent a surgery to remove his right kidney. While rehabilitating, he developed a bladder infection and was sent to a civilian hospital for treatment. An x-ray taken at the hospital revealed a spot on his lung, so he underwent a chest CT which demonstrated that his kidney cancer had spread to his lungs.

Approximately one year after he was informed about his cancer, during which time he was undergoing chemotherapy, the man was given a Stage IV diagnosis with less than one year to live. Fourteen months later, the man died as a result of "end-stage complications of advanced renal cell kidney cancer." If the man had known about his kidney cancer after the first CT scan, he likely would have undergone a surgery to remove his right kidney sooner and would've had an excellent chance of survival.

Additional Comments
  • Although the statement of claim consistently implies that physicians at the Maryland VA Medical Center knew about the kidney cancer all along, the claimant's expert witness, an internal medicine doctor, demonstrates less certainty. The expert believes that if the VA doctor had properly diagnosed the kidney cancer after the first CT, it would have been more clearly documented in the medical records. Communication mistakes can happen, the VA doctor could have made the diagnosis but forgotten to document it and make sure that someone from his office followed up with his patient, but the claimant's expert seems to believe that this is a missed diagnosis claim. In which case, it should be relatively simple to prove that kidney cancer was clearly detectable in the images from that first CT scan. Regardless of whether or not the VA doctor made an accurate diagnosis, the delay in medical treatment and the damages resulting from delayed medical treatment closely resemble a cancer misdiagnosis case.

  • For the sake of argument, let's say the VA doctor did make the proper diagnosis after the first CT scan. Is this an informed consent case? Typically, informed consent cases are filed if a doctor failed to fully disclose the risks of a procedure and/or ask permission to perform a procedure before performing it. The lack of informed consent in this case is the exact opposite: the man couldn't undergo any treatments or procedures because he didn't know that any treatments or procedures were necessary. Still, the lack of communication caused the man to suffer significant damages and ultimately his death. Because the man wasn't informed about his cancer diagnosis, he couldn't give informed consent about his medical treatment, or rather, his lack of medical treatment.

  • Urethral carcinoma is cancer of the lining of the bladder. It is a rare cancer that is rarely the subject of medical malpractice lawsuits. Plaintiff's malpractice lawyers are going to argue that while the cancer may be rare, it is like almost every other cancer in that early detection affords victims the best chance of survival.

  • Symptoms of urethral cancer include discharge from the urethra , blood in the urine, weak or urine flow, frequent urination, a lump or thickness in the penis or perineum, and enlarged lymph nodes in the on or near the groin.

Jurisdiction
  • The District Court of Maryland
Defendants
  • United States of America
  • An internist
Hospitals Where Patient was Treated
  • VA Medical Center, Perry Pointe, MD
  • VA Hospitals in Charleston, SC and Hampton, VA
  • VA Outpatient Clinic, Viera Beach, FL
Negligence
  • Failing to disclose the results of tests and examinations so that the man could make informed decisions about his health and future treatment.

Specific Counts Pled
  • Wrongful Death: The man died as a result of the defendants' negligence.

  • Vicarious Liability: The United States of America and the Department of Veteran Affairs are responsible for the damages caused by the defendants as their employees and subsidiaries.

Plaintiff's Experts and Areas of Specialty
  • Jeffrey D. Gaber, M.D., FACP, internal medicine
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