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$7.7 Million Verdict for Failure to Diagnose Tumor in Foot

The Legal Intelligencer
Friday, April 29, 2005
By Asher Hawkins

A Philadelphia jury has returned a $7.7 million verdict in a case brought by the survivors of a mother of three who died at the age of 26 after her prenatal doctors allegedly failed to diagnose a soft tissue tumor when she complained to them of pain in her foot.

According to court papers in Harris v. Jefferson University Physicians, the plaintiffs claimed Jeaneen Boyd first told her Jefferson OB/GYN doctors of problems in her left foot in September 2000, when she went for a visit in conjunction with the pregnancy of her third child.

Those complaints went uninvestigated, the plaintiffs claimed in court papers. Boyd gave birth in January 2001, and it was not until the summer of 2001 that referrals were made concerning her foot problems. She was eventually diagnosed with a rhabdomyosarcoma that had metastasized. Boyd, a native of the city’s Logan neighborhood who had worked as a certified medical assistant, died in August 2003.

Her survivors ultimately filed suit against Jefferson University Physicians and three attending physicians.

The plaintiffs were represented by Mark Tanner and Jason Daria of Feldman Shepherd Wohlgelernter Tanner & Weinstock. The defense counsel were Donald Ladd and Noreen Kemether of White & Williams.

The plaintiffs argued in court papers that if the tumor had been diagnosed around the time Boyd first complained of the symptoms in her foot, she would have had a better chance for survival. They further asserted that during her prenatal visits to Jefferson, Boyd was cared for by residents who were subject to “little or no” oversight by attending physicians.

The defense countered that Boyd’s complaints of leg and foot pain had been investigated and that no tumor had been found at the time, according to court papers. Boyd’s symptoms were attributed to sciatica, which is common in pregnant women.

Earlier in the case, summary judgment was granted in favor of the residents that had been sued in the matter, according to Ladd. The motion for summary judgment was not opposed by the plaintiffs, he said.

Tanner said the plaintiffs’ case proceeded on a theory that the attending physician defendants had not provided sufficient oversight of the residents who the plaintiffs alleged were primarily responsible for Boyd’s care.

The jury was picked April 8 and went out for deliberations Tuesday afternoon, the attorneys said. The 12-member panel returned mid-day yesterday, having deliberated for roughly 10 hours total, and were polled at 10-2.

The plaintiffs had initially demanded $7 million, and the defense did not make an offer, the attorneys said. According to Tanner, the defense made an offer of $550,000 during the second week of trial, but a counterdemand of $2 million was rejected. That offer and counterdemand only involved Jefferson University Physicians, Ladd said.

Elyce Cardonick, one of the doctor defendants, was found not liable by the jury. But the two other doctor defendants and the corporate entity were all found liable, the attorneys said.

According to Tanner, the breakdown was $5 million for wrongful death, and $2.7 million for the survival action.

Ladd said the jury apportioned 60 percent of the liability to Jefferson University Physicians, 25 percent to defendant doctor Sandra Wolf and 15 percent to defendant doctor Esther Chang.

“We knew we were going to lose this case from the first week of trial,” Ladd said.

He said that during the presentation of the plaintiffs’ case – before the defense had even presented its case – one juror gave a member of the deceased’s family a thumbs-up sign. He also said that two jurors came forward during trial with allegations that some of the other jurors had already made up their minds about the case.

Ladd said that he would be filing post-trial motions based in part on those issues. He noted that he was not permitted to enter into evidence the fact that the residents sued in the matter had been granted summary judgment.

Tanner said that Judge Marlene F. Lachman, who presided at trial, fully investigated the jurors’ claims and the allegations of a thumbs-up sign being given and decided that the trial should proceed.

Plaintiffs’ experts included OB/GYN Yvonne Thornton of Cornell University Medical College and oncologist John Marsh of the University of Virginia School of Medicine.