Collins v. Korkowski
| Docket Number | Record 1756-22-4 |
| Decision Date | 28 December 2023 |
| Parties | JEFFREY M. COLLINS v. MARTIN A. KORKOWSKI, M.D., ET AL. |
| Court | Virginia Court of Appeals |
1
JEFFREY M. COLLINS
v.
MARTIN A. KORKOWSKI, M.D., ET AL.
Record No. 1756-22-4
Court of Appeals of Virginia
December 28, 2023
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY Stephen E. Sincavage, Judge.
Thomas M. Wochok; William E. Artz (William E. Artz, P.C., on briefs), for appellant.
Michael E. Olszewski (Tracie M. Dorfman; Nicholas J.N. Stamatis; Hancock, Daniel & Johnson, P.C., on brief), for appellees.
Present: Chaney, Callins and White, Judges Argued at Alexandria, Virginia.
MEMORANDUM OPINION [*]
DOMINIQUE A. CALLINS, JUDGE.
After being diagnosed with Stage 4 prostate cancer, Jeffrey Collins sued Dr. Martin Korkowski and Dr. Korkowski's employer, Loudoun Medical Group ("Dr. Korkowski" collectively), for medical malpractice. Collins claimed that Dr. Korkowski breached the standard of care by failing to refer him to a urologist after his blood tests suggested he had prostate cancer, thereby delaying the diagnosis and treatment of his cancer. Collins maintained that, because Dr. Korkowski did not refer him to a urologist, his cancer progressed to the point that it became incurable and terminal. Collins appeals several evidentiary rulings by the trial court. He asserts that the trial court erred by excluding his proposed rebuttal expert testimony, by admitting excerpts of his deposition during Dr. Korkowski's defense and then excluding his own "cross-designation" of deposition testimony, and by allowing Dr. Korkowski to question a defense expert on redirect
without allowing further cross-examination from Collins. Finally, he maintains that these errors, separately or in combination, violated his due process rights and his constitutional right to a fair trial. For the following reasons, we affirm the trial court's judgment.
BACKGROUND[1]
I. Collins's Medical Timeline
On April 5, 2000, Collins saw Dr. Korkowski, an internal medicine physician, for an annual physical, including a prostate examination. Although Dr. Korkowski found no abnormalities during the prostate examination, he ordered a prostate-specific antigen ("PSA") blood test to screen for prostate cancer. The PSA results on April 7, 2000, were within normal ranges. When Collins repeated the PSA test in 2003, the results remained within normal ranges.
Collins did not see Dr. Korkowski again until 2007, when he complained of left breast pain. Further tests revealed that Collins's testosterone levels were 178 ng/dL, which was below the normal range of 241-827 ng/dL. Collins did not have a PSA test at that time. When Collins next saw Dr. Korkowski on October 28, 2016, his rectal exam revealed he had an enlarged prostate. Dr. Korkowski prescribed Flomax and ordered a PSA test. The test results revealed that Collins's PSA level at 9.11 ng/mL was elevated and exceeded the normal range of 0-4 ng/mL. Based on Collins's symptoms and the absence of nodules during the rectal exam, Dr. Korkowski believed that Collins likely had benign prostatic hypertrophy (BPH) and informed him he had an "enlarged prostate." Dr. Korkowski nevertheless recommended a repeat PSA test in four to six months.
Collins saw Dr. Korkowski again in August 2017. At that time, Collins's PSA was 8.49 ng/mL-lower than it had been in October 2016, but still elevated. On August 25, 2017,
Dr. Korkowski noted that Collins's PSA levels were "[h]eaded in [the] right direction." When Collins tested his PSA again in January 2018, it had risen to 10.86 ng/mL. Dr. Korkowski prescribed antibiotics and noted that Collins had a history of "BPH." On February 26, 2018, Dr. Korkowski continued Collins on antibiotics and recommended that he recheck his PSA the following month.
Several weeks later, on May 7, 2018, Collins saw Dr. Korkowski and complained of having intermittent groin pain for two months. A rectal exam revealed that Collins's prostate was enlarged, but Dr. Korkowski felt no nodules or abnormal "tone." Dr. Korkowski ordered another PSA test. The May 8, 2018 results reflected that Collins's PSA levels had risen to 14.52 ng/mL. On June 20, 2018, Collins called Dr. Korkowski's office for the results. Dr. Korkowski reviewed the results with Collins and referred him to a urologist.
On July 5, 2018, urologist Dr. Kevin O'Connor examined Collins and found that his prostate was enlarged "with a firm area in the left gland." A subsequent biopsy revealed cancer in several sites. The "Gleason" score for each sample, reflecting the cancer grade, ranged from 7 through 9. On October 15, 2018, Collins underwent a prostatectomy. Based on the pathology studies from the surgery, Collins was diagnosed with a high-grade adenocarcinoma[2] that had spread to four of ten lymph nodes. Collins sought treatment with an oncologist, who diagnosed him with Stage 4 cancer.
II. The Incidents of Trial
A. Plaintiff's Evidence
At trial, Collins presented expert testimony from three physicians: Dr. Robert Perkel, a family practice doctor; Dr. Mohummad Siddiqui, a urologic oncologist; and Dr. Jiaoti Huang, a pathologist specializing in neuroendocrine prostate cancer. Dr. Perkel opined that
Dr. Korkowski breached the standard of care by failing to inform Collins that his elevated PSA results in 2016 could reflect prostate cancer and by failing to recommend a repeat PSA test within four to twelve weeks.[3] Dr. Perkel also opined that Dr. Korkowski breached the standard of care by failing to refer Collins to a urologist after his PSA results remained elevated in May 2017 and by again failing to refer him to a urologist when his PSA results rose further in January 2018.
Dr. Siddiqui concurred, opining that Dr. Korkowski breached the standard of care by either failing to refer Collins to a urologist after his October 28, 2016 PSA test or by retesting him "in a much shorter time period" than four to six months. Dr. Siddiqui testified that, when Collins's PSA results in August 2017 remained elevated, Dr. Korkowski breached the standard of care by failing to refer Collins to a urologist. Moreover, Dr. Siddiqui opined that, if Collins's cancer had been diagnosed in 2016 or 2017, there was a 90 to 95% likelihood that a prostatectomy would have cured him; but, because the cancer had metastasized, Collins's five-year survival rate was less than 10%. Dr. Siddiqui stressed that, based on Collins's rectal exam and PSA levels during that time frame, the cancer had likely not yet spread past the prostate capsule. Dr. Siddiqui did not believe that Collins had high-grade metastatic prostate cancer before October 2016; however, he noted that patients with high-grade prostate cancer could be cured if the cancer is detected early.
Dr. Huang testified to causation only and did not address whether Dr. Korkowski breached the standard of care. He testified that Collins had prostate cancer as early as October 28, 2016, but, based on his Gleason scores remaining in the "gray zone" below 10, the cancer was low grade and confined to the prostate. After late 2017, the cancer cells began to mutate and
became more aggressive, as reflected in the higher January 2018 PSA levels, and they became a high-grade Gleason 9 cancer. Dr. Huang reviewed the pathology slides from Collins's surgery and discovered a small percentage of highly aggressive small cell neuroendocrine carcinoma cells among the more common adenocarcinoma cells. Dr. Huang disagreed that a prostate cancer's Gleason score is fixed from the time it first develops. Thus, he opined that if Collins's cancer had been treated with surgery or radiation in 2016 and 2017, he would have been cured. B. Defense's Evidence
Dr. Korkowski presented testimony from three experts: Dr. Jason Engel, Dr. Marc Garnick, and Dr. Mark Markowski. Dr. Engel, a urologist, testified that Dr. Korkowski did not breach the standard of care by monitoring Collins's PSA levels for trends between 2016 and 2018 rather than referring him to a urologist. Dr. Engel opined that a biopsy is not necessarily appropriate when a PSA level is between 4 and 10 ng/mL, but once Collins's PSA rose to 14.52 ng/mL in May 2018, Dr. Korkowski complied with the standard of care by referring Collins to a urologist.
Dr. Garnick, a urologic oncologist, testified that an earlier diagnosis in 2016 would not have altered Collins's prognosis because Collins always had high-grade, Gleason 9 cancer. Moreover, he stated that he knew of no studies or medical literature demonstrating a correlation between rising PSA levels and a higher Gleason score.
On cross-examination, Collins questioned Dr. Garnick about the value of PSA screening in predicting prostate cancer outcomes. Dr. Garnick answered that "whether or not PSA-based testing can lead to an earlier diagnosis, and if that earlier diagnosis can lead to improvements, as measured by patients living longer . . . has been the subject of many, many different studies," and "the answers have been negative."
On redirect, Dr. Korkowski questioned Dr. Garnick further about the studies he cited during cross-examination and presented them to Dr. Garnick without objection. When Dr. Garnick began to address the advances in colon cancer screening, Collins objected that Dr. Garnick was addressing "an area that was not raised . . . in cross-examination" and that he was "going off on a[] . . . tangent that we didn't discuss in cross." Dr. Korkowski responded that Collins had asked Dr. Garnick during cross-examination about "whether earlier prognosis could lead to improvement of outcomes," leading to Dr. Garnick citing certain "studies." Dr. Korkowski maintained that he was "simply following up with him on redirect." Collins offered no further argument, and the trial court overruled his objection. Dr. Garnick concluded his testimony by noting that the studies he referenced supported his opinion that Collins's prognosis would have been no different if his cancer had been detected in 2016 or 2017.
Dr. Markowski, an oncologist,...
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