David Standiford contacted me in January 2012 to set up a meeting, and I met him and his wife at their home a few days later. David informed me that he believed that the Department of Veteran’s Affairs Medical Center in Kansas City (“VA”) had committed malpractice in failing to diagnose his lung cancer. He was diagnosed in July 2011 with squamous cell carcinoma of the lung, Stage IV T3 N2M1b. T3 means that the size of the primary tumor was a 3 on a scale of 0 to 4. N2 means that the degree of regional lymph node involvement was a 2 on a scale of 0 to 3. M1b means that distant metastasis was present. Mr. Standiford was informed that he had no realistic chance of survival and any treatment would be palliative in nature and given one to three years to live.
In order to bring a claim against the United States of America (“Government”) (or any state or municipality for that matter) there must be an exception to the doctrine of sovereign immunity, and you generally have to follow certain procedures in order to prefect a claim. In Mr. Standiford’s case, the exception to sovereign immunity to bring a claim against the United States of America falls under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq. To have standing to bring a medical malpractice lawsuit against the Government, you must first file an administrative claim with the agency who you believe committed the malpractice. Once that claim has been denied, pursuant to 28 U.S.C. § 2675(a) you have six months within which to 1) appeal the administrative decision, or 2) file a lawsuit against the Government. Should you appeal the decision, you have six months from the denial of the appeal to file your lawsuit against the Government pursuant to 28 C.F.R. § 14.9.
David informed me that he had initially retained another firm to represent him in filing the administrative claim, which was filed on August 29, 2011. Shortly after filing the firm withdrew from representation on the belief that David did not have a strong case, and his administrative claim was denied on January 30, 2012. I conducted a thorough investigation into his case, which included a review of all of his medical records and imaging records and retaining a physician and radiologist to report their findings as to liability. Based on my investigation and the findings of our experts, on July 30, 2012 I filed a lawsuit on David and his wife’s behalf against the Government alleging 1) failure to diagnose/misdiagnosis of lung cancer, 2) loss of chance for cure, and 3) loss of consortium. The case was docketed in the United States District Court for the Western District of Missouri (WDMO) as Case Number 4:12-CV-01003-W-ODS.
David died from lung cancer on November 12, 2012, after which I filed a motion to stay the proceedings and a second administrative claim on behalf of his estate and his wife for wrongful death. The second administrative claim was denied on February 8, 2013, and I filed an amended petition in the WDMO on March 12, 2013, in which David’s wife and estate were the named plaintiffs and an count for wrongful death was added. After conducting initial discovery with the Assistant United States Attorney (“AUSA”) we agreed to engage in mediation, which took place on August 27, 2013 with Thomas W. Wagstaff of Wagstaff & Cartmell LLP as the mediator. Mr. Wagstaff is one of the founding members of his firm, and has a great deal of experience in medical malpractice.
There were a number of issues present at mediation, the least of which was liability. The first issue that we had to address was causation, a legal principle which requires the plaintiff to prove that the alleged negligence actually caused, or contributed to cause, the plaintiff’s injuries. In this case I had researched and prepared to address arguments by the Government on two specific issues related to causation, namely (1) even if Mr. Standiford’s cancer had been diagnosed in May 2009, it is difficult to determine the stage of his cancer in May 2009 (when the radiologist was allegedly negligent in reading and interpreting David’s chest x-ray), therefore it is difficult to accurately ascertain what percent chance of survival was lost, and (2) Mr. Standiford had a number of other ailments that would have likely resulted in a decrease in his life expectancy, therefore decreasing his non-economic damages.
Lost Chance of Survival
In addressing the first issue, I first relied on studies done by the United States National Institutes of Health, National Cancer Institute, which were compiled into cancer statistics and data from 1975 through 2010 in a publication called the SEER Cancer Statistics Review 1975-2010 (“SEER”). Section 15 of said publication, titled “Lung and Bronchus”, table 15.14 titled “Non-Small Cell Cancer of the Lung and Bronchus (Invasive)” has 5 year survival rates calculated by age, sex, stage and race. On May 12, 2009 David was 55 years old. Based on the SEER data from 2003-2009, the 5 year survival rate for a white male between the age of 55-64, after diagnosis with non-small cell cancer of the lung or bronchus at any stage, is 18.6%. When that cancer is localized (i.e. tumor is less than 3 cm in diameter and has spread no further than the organ in which it started), this 5 year survival rate jumps to 50.1%. Studies have shown that early detection and resection of localized Stage I Non-Small Cell Lung Carcinomas offers a five year survival rate in the range of 60-80%. Dominioni, L, Imperatori, A, Rovera, F, et al. (2000) Stage I non small cell lung carcinoma: analysis of survival and implications for screening. Cancer 2000 Dec. 1; 89, 2334-44. I submitted that the higher number is not inconsistent with those published by the National Cancer Institute, because the SEER data does not account for the ongoing changes in medical technology and the steady increase in lung cancer survival rate. For example, the SEER data shows the one year survival rate from 2003 to 2009 steadily increasing from 39.4% to 42.5%. Further, the SEER data takes into account mortality rates that are not due to the diagnosis of cancer.
I also relied on the case of Downey v. University Internists of St. Louis, a case in which the delay in diagnosis and treatment were strikingly similar to those of Mr. Standiford’s case. 154 S.W.3d 339 (Mo. E.D. 2004). Patrick Downey went to the hospital in December 1996 for heart bypass surgery. Two x-rays were taken prior to surgery, one of which showed a 1.5 cm nodular density at the left base of his lung. The patient did not learn of the abnormal lesion until the fall of 1998, and by the time it was diagnosed in November 1998 it had progressed to Stage IV and metastasized to his spine. At the time of diagnosis he was given a 1% chance of survival and he died in August 1999. Mr. Downey’s wife brought a survival action against the hospital and the attending physician for lost chance of survival. At trial experts testified that the cancerous lesion was likely at Stage I or II in December 1996. They further testified that Mr. Downey would have had a 50 to 75% chance of survival had the cancer been detected and treated in late 1996 or early 1997. Based on the deposition testimony of the oncologists in Downey, I was able to conclude that David would have been in clinical Stage 1A on May 12, 2009, and given that the delay was 3 1/2 months longer in David’s case than in Downey, I was able to conclude with reasonable certainty that he lost a 55-80% chance of survival.
Addressing the anticipated argument that David was in poor health and his other ailments would have likely decreased his life expectancy, I also cited to Downey, in which the Missouri Court of Appeals stated, “Patrick Downey died from the cancer the defendants negligently failed to diagnose, not some other ailment. Further, there was no evidence that these other ailments would have necessarily taken his life.” 154 S.W.3d at 343. In Downey the decedent suffered from a heart condition, however David had no such life threatening ailments or diseases prior to the onset of cancer, therefore we submitted that any such argument would be without merit.
Damages Cap in Wrongful Death Cases
The final and potentially most significant issue that we had to address was recoverable non-economic damages in Missouri, which are capped at $350,000 for wrongful death cases pursuant to RSMo § 538.210(1). I relied on the recent decision of the Missouri Supreme Court in Watts v. Cox, which held that the non-economic damages cap in Missouri deprives Missouri citizens of their inviolate right to trial by jury, including the right to have a jury assess damages. The problem with the application of the Watts holding to David’s case, similar to a claim for wrongful death in Missouri, is that the FTCA is a creature of statute as opposed to a common law claim. The AUSA argued that because the plaintiff has no common law right to sue the Government absent an exception to the doctrine of sovereign immunity, and consequently no common law right to a jury trial, the cap should apply to FTCA claims despite the holding in Watts. Further, 28 U.S.C. § 2402 provides that the plaintiff does not have the right to a trial by jury brought under the FTCA. I based my arguments on the statutory language of the FTCA, namely the provisions of 28 U.S.C. § 1346(b), which provides that damages are “determined by the law of the State where the tortious act was committed”, and 28 U.S.C. § 2674, which provides that the Government shall be liable “in the same manner and to the same extent as a private individual under like circumstances.” I argued that because a “private person” bringing a wrongful death claim against a “private individual” is not subject to the damages cap under Watts, and because the Government is liable to the same extent as a “private individual” under the FTCA, it follows that the damages cap similarly does not apply to FTCA claims. The mediator noted that he had dealt with this in a previous case, however, it is still an open issue and has not yet been addressed by the Courts.
After mediating the case for nearly the entire day, Ms. Standiford chose to accept the Government’s settlement offer of $225,000 for the wrongful death claim. She entered a stipulation for compromise settlement and release of claims on September 10, 2013, which was approved by the Court the next day, and I dismissed the remaining counts on September 13, 2013. In light of the fact that David came to me at a time when his previous attorneys had withdrawn from his case, his family has expressed on numerous occasions their appreciation for the time and effort that I put into their case.
While no amount of money can ever compensate a family for the loss of a loved one, especially when that loss occurred well before it should have, monetary awards are the only way that civil law can recognize the decedent’s life and compensate the surviving spouse and family members for lost wages, medical bills, and, if appropriate, penalize the party at fault. If you feel that a friend or family member has been a similar situation, please contact us today for a free consultation and we will work towards assisting you to achieve the best possible outcome in your case.
My father was diagnosed with stage IV lung cancer July of 2011. He had been seeking medical care at the Kansas City VA hospital. My father had started to complain of certain abnormalities from weight loss, to sever pain, weakness and lethargy. Many appointments were made to try and find the cause of these symptoms. He was put on several different pain medications and was sent home with Bengay for the “muscle pain”. This had been going on since 2009. Chest x-rays were ordered and other labs tests. Nothing came of the chest x-rays until it was too late.
My father went to the ER at the VA hospital with unbearable pain and was sent home with more pain meds and yet again, Bengay. He returned to the VA hospital to the ER desperate for help! Finally he saw a competent Dr. who ran appropriate test were they had found the stage IV lung cancer that has metastasized all through his body. The tumor had grown from the lung and through his rib cage which was broken. He now had no chance of life!
My father had initiated a tort claim against the VA for misdiagnosis and negligence. We had a law firm who we thought could help us and ended up turning us down. That’s when Mr. Kenney came into place. He was willing to help our family not knowing the outcome. Sadly my father had passed November 2012. Mr. Kenney’s drive to find an answer for my father’s death seemed to increase. He helped research and gather pertinent information to provide a strong case showing the misconduct against my father. Through Mr. Kenney’s hard work and dedication my mother and I were able to meet with the US attorneys in mediation and settle my father’s case.
We couldn’t be more happy with the outcome. My father is missed every day. Knowing that someone took responsibility for how my father was treated brings a certain closure. We can’t thank Mr. William Kenney enough for all that he did for our family. His professionalism and outstanding knowledge brought us the ending we needed to move on with life without dad. All we can say is thank you!!!