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Failure To Test Biopsy / Excision of Tissue – Malpractice Lawsuit

An Indiana jury has returned a $8.1 million medical malpractice verdict in favor of a 33 year old mother of two, whose cancer was not timely diagnosed and treated. Apparently, the woman had a growth removed from her bit toe in 2004 by a local podiatrist, who did not test the growth at the time. When the growth resurfaced two years later, it was tested and the test revealed malignant melanoma. The woman claimed in her malpractice lawsuit that the doctor should have tested the tissue from the excised growth. Now in stage three of the cancer, she has just a 17 percent chance of living another 12 years, according to statistics
Interestingly, the doctor’s medical practice apparently failed to participate in the state program that caps malpractice damages at $1.25 million for all care providers involved in a case. Nevertheless, the doctor will be shielded by Indiana’s $250,000 damages cap on all damages against individual doctors under the law. The woman’s lawyers will have to pursue attempting to recover the verdict from the doctor’s medical practice. A copy of the article regarding the case can be found here.

This case involves several important issues. First, is the failure to test the removed tissue. Whenever abnormal tissue is removed from the body, through a biopsy or by excision, it must be tested to determine whether it is cancerous.

Second, this case demonstrates the ill effect of low caps on damages. In my personal opinion, this doctor essentially killed this woman, but will escape any significant liability through a $250,000 cap on damages. It seems like a crime to me.

In Maryland, Maryland law, medical malpractice lawsuit damages for pain, suffering and emotional distress are capped at $650,000. But economic damages, on the other hand, such as past and future lost wages, past and future medical expenses, and lost household services, are uncapped in Maryland.

The only significant exception to the cap on non-economic damages relates to Maryland Wrongful Death cases. A Wrongful Death claim is a personal injury lawsuit that is brought due to the wrongful death of a person. It can be brought by a child, spouse or parent of the deceased person. In a Wrongful Death case in which there are two or more claimants (i.e. a spouse and child), the non-economic damage cap is limited to $812,500 (125% of $650,000). That cap also will start slowly increasing at the end of this year (December 31, 2008), when the cap is scheduled to start increasing $15,000 per year.

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