Case details

Repeat test not effective in detecting ovarian cancer: defense

SUMMARY

$0

Amount

Verdict-Defendant

Result type

Not present

Ruling
KEYWORDS
abdominal pain., bloating, cancer had perforated bowel, constipation, ovarian cancer, persistent pain
FACTS
In January 2012, Kimberly Hecko, 48, an elementary school teacher, experienced unexplained abdominal pain. As a result, she underwent an abdominal ultrasound, which was shown to be abnormal. Hecko was worried that she had ovarian cancer, so her primary care physician at Palo Alto Foundation Medical Group ordered a CA 125 test, which measures the amount of the protein CA 125 (cancer antigen 125) in the blood. The CA 125 level was ultimately found to be elevated at 55.7, whereas a normal value is 35. Since early signs of ovarian cancer may include abdominal pain, bloating, constipation, elevated CA 125 levels, or abnormal findings on an ultrasound, Hecko’s primary care physician referred her to a gynecologist. Hecko presented to the referred gynecologist one week after receiving the elevated CA 125 results in the hope of ruling out ovarian cancer. During the office visit, the gynecologist performed a limited ultrasound and allegedly assured Hecko that she did not have ovarian cancer. However, Hecko returned to the gynecologist in March 2012 and underwent another limited ultrasound in his office. The gynecologist allegedly again reassured her that she did not have ovarian cancer. Hecko claimed that she was extremely relieved and that as a result, she did not see another physician for her abdominal discomfort until February 2013, when she had persistent pain and a fever. Hecko presented to an urgent care clinic for her persistent pain and fever, and then presented to an emergency department, where she was diagnosed with metastatic cancer in her ovaries, sigmoid colon, omentum, and right pelvic sidewall. The cancer had perforated her bowel, causing the fever, and her CA 125 level was found to be 312. Hecko sued Palo Alto Foundation Medical Group Inc., alleging that the medical group failed to diagnose her ovarian cancer and that this failure constituted medical malpractice. Plaintiff’s counsel contended that the standard of care required a repeat CA 125 test within four to six weeks of the first elevated CA 125 blood test result in January 2012. The plaintiff’s expert gynecologic oncologist opined that the standard of care required the gynecologist to explain the elevated CA 125 result. The expert also opined that a repeat CA 125 blood test would have been further elevated, which would have created a reasonable suspicion of ovarian cancer that could only be ruled out by surgery. He explained that a rising CA 125 level in a patient is an indication of the presence of ovarian cancer, whereas a CA 125 level that decreases or fluctuates is more indicative of a benign process. Thus, the expert opined that the standard of care would have required a surgery to obtain a pathological examination of the tissue and that surgery in February or March of 2012 would have revealed the presence of ovarian cancer, when it was still at Stage I or II, which had a greater than 70 percent likelihood of a cure. The plaintiff’s expert testified that had Hecko been diagnosed earlier, she would likely have been cured, instead of now facing a life expectancy of one to two years. The plaintiff’s expert pathologist opined that Hecko had early-stage, high-grade, serous carcinoma in January 2012. He testified that his opinion was based upon the elevated CA 125 level of 55.7 in January 2012, and the subsequent measurement of 312 on the CA 125 test in February 2013. However, the pathologist’s opinion was struck because he was not an expert on the topic of CA 125. On cross-examination, plaintiff’s expert gynecologic oncologist was asked if the defense’s experts were competent physicians. He answered that based upon the defense experts’ contrary testimonies, those physicians “regrettably” would not have obtained the repeat CA 125 test. All experts agreed that there is no scientific data regarding the growth rate or doubling time of ovarian cancer and that, in fact, it would be unethical to conduct experiments to delay the diagnosis of ovarian cancer in order to obtain data about the growth rate. Thus, none of the experts knew when the first cancer cell developed in Hecko’s body. The defense’s expert gynecologic oncologist and local expert gynecologist opined that the standard of care did not require a repeat CA 125 test be performed. They testified that studies using CA 125, ultrasounds, and pelvic examinations do not have an acceptable level of sensitivity and specificity and that false positive results can lead to unnecessary surgeries and patient harm. Defense counsel contended that there are no documented effective screening methods that reduce the mortality of ovarian, fallopian tube, or peritoneal cancers. In addition, the defense’s expert gynecologic oncologist testified that he did not know when the cancer originated, but that he believed that Hecko likely had metastatic Stage IIIC ovarian cancer at its inception, within six to nine months before the diagnosis. However, plaintiff’s counsel noted that on cross-examination, the defense’s expert gynecologic oncologist retracted his testimony that the cancer was metastatic at inception due to medical literature stating otherwise. Defense counsel noted that on Sept. 7, 2016, during the trial, the Food and Drug Administration published a warning against using screening tests for ovarian cancer, stating, in part, “Despite extensive research and published studies, there are currently no screening tests for ovarian cancer that are sensitive enough to reliably screen for ovarian cancer without a high number of inaccurate results.” However, plaintiff’s counsel noted that evidence of the FDA warning was not admissible at trial., Hecko was diagnosed with Stage IIIC ovarian cancer on Feb. 26, 2013. She underwent surgery and chemotherapy, and was in remission until mid-2015, when her CA 125 level started rise again. Hecko then underwent another surgery to remove the walnut-size tumor in the para-aortic lymph node in December 2015. She also received additional chemotherapy and radiation therapy. Hecko claimed that has a diminished life expectancy as a result of the diagnosis of Stage IIIA ovarian cancer. The plaintiff’s expert gynecologic oncologist testified that Hecko’s current life expectancy is one to two years. In addition, the plaintiff’s expert economist testified that the present value of Hecko’s past and future loss of earnings was approximately $1 million. Thus, Hecko sought recovery of approximately $665,000 in past and future lost wages, and her spouse, plaintiff Joan Peterson, sought recovery of damages for her loss of consortium. Plaintiffs’ counsel subsequently asked the jury to award $665,000 in economic damages and an unspecified amount of non-economic damages on behalf of Hecko and Peterson.
COURT
Superior Court of Santa Clara County, Santa Clara, CA

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