Delayed Diagnosis of Lung Cancer

Facts of the Case

The patient, Cheryl Hir, was a 66-year-old nurse with a history of smoking and cardiac issues. In February 2017, she presented to the Emergency Department (ED) due to a rapid heartbeat. A portable chest x-ray was performed, and while the ED physician initially read it as unremarkable, the preliminary radiology report revealed a mass in her upper right lung.

The core of the negligence involved two distinct failures:

• Hospital and ED Failure: The radiologist’s findings came in just three minutes before Cheryl was discharged from the ED, but she was never informed of the mass. The ED discharged her with instructions to follow up with her primary care physician (PCP). The hospital relied on an unwritten process to fax incidental findings to the PCP, but they failed to inform the patient directly.
• PCP Failure: The final radiology report was faxed to the PCP, who signed off on it. Critically, the PCP also failed to inform Cheryl of the finding, even when the patient came in for an unrelated visit a few months later. The PCP later admitted negligence before and during the trial.

Seven months later, the delay proved fatal. Cheryl was diagnosed with lung cancer that had already metastasized to her brain. She passed away in May 2018 from the brain metastases.

Overcoming Defense Hurdles

The case was tried as a “lost chance of life” claim, a necessity given the significant hurdles presented by the defense.

• Causation: The central defense was that the seven-month delay didn’t matter. Defense experts argued that Cheryl was already at a late stage of cancer (Stage IV or Stage IIIB) when the mass was first seen, suggesting she would have had a negligible chance of survival regardless of the delay. The plaintiff’s expert countered that early diagnosis would have placed her at Stage II or IIIA, offering a 40-65% or 20-27% chance of five-year survival, respectively.
• Smoking History: The defense heavily emphasized Cheryl’s history of smoking and her continued smoking after diagnosis, implying she was responsible for her condition.

Attorneys Massa and Lisi employed a “don’t chase the defense” strategy, choosing instead to focus their narrative and evidence exclusively on the core theme: “Every doctor, their patient has a right to be told”. This approach helped prevent the jury from getting distracted by defense-friendly topics like smoking or the patient’s cardiac history.

The Compelling Damages Argument

In a jurisdiction that limits how damages can be suggested, attorney Rudy Massa crafted a memorable closing argument to help the jury quantify the value of the chance that was lost.

Massa used the “survival chance card” analogy. He asked the jury to imagine a woman about to be in an unavoidable, life-threatening crash, then offered a bag of cards, each representing a 1% chance to survive. He argued that she would take every card without hesitation, as every card is a chance to live.

• The Punchline: Cheryl never had the opportunity to take those cards; that choice was stolen from her.
• Jury Guidance: Massa then instructed the jury to determine the value of a 1% chance to live and then multiply that value by the percentage of chance they believed the defendants took away (e.g., multiply by 40 for a 40%).

The family, including Cheryl’s adult children and live-in boyfriend, gave powerful testimony. A co-worker’s testimony was particularly moving, causing her to break down on the stand and eliciting tears from several jurors.

The Verdict

After approximately five hours of deliberation, the jury returned a $1.5 million verdict. The jury found the Primary Care Physician entirely at fault, excluding the ED doctor and the hospital. This outcome was likely influenced by the PCP’s admission of negligence and the testimony that the PCP had the best and later opportunity to inform the patient.

The case is a testament to the power of a focused narrative and a compelling framework for damages in complex delayed diagnosis claims.