A Medical Malpractice Case Revived on Appeal

Cary Schirmer noticed something on his back, a “lesion,” some time before November, 2010. He went to a doctor, Dr. Wagner, who diagnosed it as benign seborrheic keratosis (see an example to the left) and the Dr. Wagner removed it using liquid nitrogen.

To the right, see examples of malignant melanoma.

Note the image to the left, the benign condition, and the image to the top right, a malignant melanoma. To me, they do not look all that different.

Dr. Wagner failed to get a biopsy of the tissue he removed in November, 2010.

One year later, Mr. Schirmer went back to Dr. Wagner, having noticed a “tender mass” in his right armpit. A subsequent biopsy determined that it was a malignant melanoma this time. Less than one year after that Mr. Schirmer died from that cancer.

If Dr. Wagner had run a biopsy of the 11/2010 lesion, what would it have shown? If, hypothetically, the biopsy confirmed no cancer, then Dr. Wagner’s work would not have prevented Mr. Schirmer’s unfortunate death.

We do not want our civil justice system to be used to coerce settlements from healthcare providers every time someone dies or has some adverse health event. On the other hand, we have an expectation of a baseline standard of care. What was the harm in running a biopsy? Why not? I thought MDs love to run tests.

Putting flippancy aside, it is a complex technical question whether Dr. Wagner’s failure to order a biopsy or shave excision of Schirmer’s 11/2010 lesion allowed the cancer that ultimately killed Mr. Schirmer’s to go undetected.  Presumably we all agree that the answer should dictate whether Dr. Wagner should be held accountable for Schirmer’s death.

The St. Louis County District Court threw the case out because doctors who treated Mr. Schirmer’s skin cancer determined that the primary melanoma site which ultimately spread was in fact the lesion adjacent to the lesion that Dr. Wagner treated and not the lesion Dr. Wagner actually treated. So, the Court reasoned, a biopsy or shave excision more likely than not would have shown nothing.

The Minnesota Court of Appeals reversed the district court. The district court was obligated to stick to the plaintiff’s experts’ opinions without regard to the opinions of defense-favoring evidence. Plaintiff had three experts and the three experts’ opinions, while “not ideal,” satisfied the required threshold evidence for (1) a breach of the standard of care, and (2) causation of harm.

Congratulations to plaintiff and plaintiff’s counsel, James T. Smith. Medical malpractice cases are extremely challenging and Mr. Smith and his client managed to clear one of the higher hurdles to ultimate recovery.