LANSING, Mich. (Legal Newsline) – A Michigan appeals court has decided whether a lawsuit brought over the death of a woman who suffered from colorectal cancer should be classified as medical malpractice or “lost opportunity.”
In the case of Patricia Benigni, whose estate alleged she could have been cured had her oncologist diagnosed recurrence of the disease sooner, her estate convinced the Michigan Court of Appeals to overturn a trial court ruling and classify the lawsuit as medical malpractice.
“In this case, it is undisputed that Patricia died as a result of the metastasized colorectal cancer which, undiagnosed, progressed to the point that there was no curative surgical option available,” the decision says.
“It is also alleged that Dr. Alsawah’s failure to properly investigate the elevated CEA levels and catch the recurrence of cancer sooner was the cause of the disease progressing to this level. An earlier diagnosis would have given Patricia the option for curative surgery and increased her chance of a cure and survival.”
The estate sued Huron Medical Center and Dr. Samir Alsawah in St. Clair Circuit Court after Patricia passed in 2012. She had been diagnosed with state III colorectal cancer in 2012.
She underwent chemotherapy and radiation treatment in preparation for surgery to remove the tumor in February 2013 then went through nine rounds of chemo to lower the risk of recurrence. Alsawah checked and monitored her carcinoembryonic antigen (CEA) level every four to six weeks.
Her levels began to rise at the end of 2015 to numbers the plaintiff’s expert says reflected a sure recurrence of colorectal cancer. Despite the sharp increase in her CEA levels, Alsawah did not explore a cause and began seeing Patricia once every six months.
In August 2017, a large liver mass was found. Her colorectal cancer had recurred and metastasized, and a surgeon told her that surgery was not a viable option. The wrongful death lawsuit blames Alsawah for failing to recognize her cancer had come back.
The defendants successfully argued the loss-of-opportunity doctrine applied because there was no information showing her opportunity to survive was ever greater than 50%, but the estate’s expert testified long-term survival was a surer bet than 50-50.
Judge Jane Markey dissented, writing the loss-of-opportunity doctrine has “a tortured history in Michigan civil jurisprudence” and asked the state Supreme Court to help resolve the issues she has resolving differences in two previous rulings in other cases.
Ultimately, she found survival rates for people with conditions like Patricia's too low to pass the 50% threshold.