Morrison Mahoney Partner Bill Smart and Associate Kaci Harris recently obtained a defense verdict in a six-day Medical Malpractice and Wrongful Death trial against a prominent, Boston-based firm in Brentwood, New Hampshire, Rockingham County Superior Court. The plaintiff-decedent was a 44 year-old whose widow, minor child, and Estate claimed that our clients, an urgent care center and provider, were negligent in causing an 11 month delay in diagnosing lung cancer. Plaintiffs claimed, among other things, that our clients were negligent in failing to elicit an adequate smoking history, failing to rule out or advise on the possibility of lung cancer, and failing to order or discuss the need for a chest CT scan and/or specialty referral in a former smoker who presented with a seven-month history of chronic cough and wheezing.

The case was defended on both standard of care and causation. The defense presented evidence in the form of expert testimony that the average qualified, or reasonably prudent provider would not have had a high index of suspicion for lung cancer because the decedent was young (then aged 42), and because the vast majority of chronic coughs and wheezing are attributable to benign conditions. The decedent had a history of childhood asthma and bilateral, diffuse wheezing on physical examination. He responded to bronchodilators, and did not have any “red flag” symptoms for lung cancer. Significantly, our client obtained a chest x-ray that was negative. She also advised the patient to follow up with his primary care physician in 2-5 days, which he did not do for a period of about six months.

Evidence was presented that the primary tumor later found in the decedent’s left main bronchus was unlikely to cause diffuse (rather than focal) wheezing, and would not have responded to bronchodilators. Cough is late presenting symptom of lung cancer. Moreover, based on the aggressive histology and genetics of the descendant’s cancer, the defense argued that he probably did not have cancer at the time that he presented to the defendants, or that it probably would not have been visible on a CT scan until months later. The defense argued that even if diagnosed at an earlier stage, the decedent would have had a poor prognosis, and likely would not have survived more than five (5) without recurrence.

Notably, the case was focus grouped prior to trial with an emphasis on juror attitudes toward the role of urgent care, which turned out be highly predictive of juror comments during voir dire, and their ultimate disposition of the case.