$1,156,149.00 Verdict – Undiagnosed Laryngeal Cancer

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Lopez v. The United States of America

While in federal prison, our client’s repeated complaints of nasal blockage and difficulty breathing were ignored by prison physicians.  If properly worked up, he would have been timely diagnosed with Stage I laryngeal cancer; but instead the delay caused his cancer to go unrecognized until it was Stage III.  His cancer further progressed to Stage IV, requiring multiple surgeries, including a permanent tracheostomy and a hemilaryngectomy–partial removal of the larynx; and nine months of chemotherapy and radiation treatment.

The published verdict from verdictsearch.com:

In June 2000, plaintiff, an inmate incarcerated at the federal correctional institution located in Loretto, Pa., reported that he was suffering a nasal blockage and breathing difficulty. He was subsequently examined by several of the institution’s physician’s assistants.
On July 6, 2000, plaintiff submitted an “inmate request to staff” form that requested an examination by an ear, nose and throat specialist. The request was denied. Plaintiff appealed the denial, but the jail warden denied the appeal.

During the period that spanned September 2000 and June 2001, plaintiff repeatedly reported that he was suffering hoarseness, a sore throat, speaking difficulties and a dry cough. He was examined more than 13 times by the prison medical staff, which ultimately determined that plaintiff was suffering recurrent pharyngitis–an infection or irritation of the pharynx or tonsils. Plaintiff was administered several different antibiotics.

During the period that spanned June 2001 and July 2001, plaintiff was transferred three times. He was sent to the federal penitentiary in Lewisburg, Pa., to the federal transfer center in Oklahoma and, finally, to the federal detention center in Oakdale, La. At each stop, he repeated his complaints, was examined and was administered antibiotics.

On Oct. 24, 2001, plaintiff was examined by Dr. Leslie Warshaw Jr., an ear, nose and throat specialist who was employed by the Federal Bureau of Prisons. Warshaw recommended performance of a CT scan and requested a follow-up examination of plaintiff. He did not examine plaintiff’s larynx, but such an examination was performed during the follow-up examination, which occurred Jan. 22, 2002. During that examination, Warshaw observed a lesion that was located on plaintiff’s larynx. Warshaw recommended performance of a biopsy.

On Feb. 6, 2002, Warshaw performed a panendoscopy–an examination of the lining of the esophagus. He also performed a laser biopsy of the larynx lesion. He removed a mass legion that occupied the anterior two-thirds of plaintiff’s right true vocal cord. After the procedure, Warshaw determined that plaintiff was suffering laryngeal cancer.

Plaintiff sued the Federal Bureau of Prisons and its operator, the United States of America. He alleged that the bureau’s staff failed to timely diagnose and treat his cancer and that the failure constituted medical malpractice. The matter proceeded to a bench trial.

Plaintiff claimed that he repeatedly requested examinations by an ear, nose and throat specialist, but that his requests were denied. His counsel contended that the cancer was diagnosed during stage III, but that it could have been diagnosed in September 2000 or October 2000, when it was a stage-I condition. He also contended that plaintiff’s treatment did not begin until after March 1, 2002, when plaintiff  was released from the federal prison system.

Defense counsel contended that plaintiff’s cancer was timely diagnosed. They also contended that his medical history included a series of throat ailments that were unrelated to his cancer. They noted that one of the ailments necessitated performance of a tonsillectomy.

Plaintiff claimed that he suffered stage-III laryngeal cancer that progressed to stage IV. He contended that his treatment did not begin until after March 1, 2002, when he was released from the federal prison system. His treatment comprised multiple surgeries, which included a permanent tracheostomy and a hemilaryngectomy–partial removal of the larynx. He also underwent nine months of chemotherapy and radiation treatment. The cancer recurred in 2003, but it was subsequently eradicated, and plaintiff remains cancer-free.

Plaintiff claimed that his tracheostomy tube often causes coughing and that he cannot talk unless he covers the tube’s opening. (He uses a finger to cover the opening.) He contended that he suffers esophageal stenosis–or narrowing–and that he will require additional surgical procedures. He also contended that his cancer has produced a 10-year shortening of his life expectancy. His counsel contended that the disease could have been diagnosed before or during stage-I status and that an earlier diagnosis would have produced a more favorable result.

Plaintiff’s medical expenses totaled $18,149. They were paid by insurance, but a lien was pending. He sought recovery of the lien amount, his future medical expenses and damages for his past and future pain and suffering. His damages request totaled $6 million–the maximum allowed by the Federal Tort Claims Act.

Defense counsel noted that plaintiff was a smoker and contended that his cancer may have fully or partially stemmed from damage caused by smoking. They also contended that his cancer-treatment choices might have fully or partially caused the residual conditions that he experiences. Specifically, they claimed that radiation therapy could have achieved a better result than the hemilaryngectomy. They contended that radiation therapy would have preserved his voice and that it would not have caused esophageal stenosis.

Defense counsel also contended that plaintiff’s cancer was diagnosed during stage II, that it was timely diagnosed and treated, and that an earlier diagnosis would not have altered the outcome of his treatment.

Defense counsel further noted that plaintiff’s incarceration included stays in three states and that it ended in Louisiana. They argued that Louisiana law should have been applied to this case and that, as such, plaintiff’s damages recovery should have been limited to that state’s maximum: $500,000. In response, plaintiff’s counsel argued that Pennsylvania law was applicable because a cancer diagnosis could have been made while plaintiff was incarcerated in that state. Judge Charles Sifton accepted the latter argument.

Sifton rendered a plaintiff’s decision. He found that the Bureau of Prisons failed to timely diagnose and treat plaintiff’s cancer and that the failures were a proximate cause of plaintiff’s damages. Plaintiff was awarded $1,156,149.