Wolff v. Magal

• Decision Date: 23 June 2022
• Docket Number: 819-2021
• Parties: CAROL R. WOLFF v. CHARLES P. MAGAL, M.D., et al.
• Court: Court of Special Appeals of Maryland

CAROL R. WOLFF v. CHARLES P. MAGAL, M.D., et al.

No. 819-2021

Court of Special Appeals of Maryland

June 23, 2022

Circuit Court for Garrett County Case No. C-11-CV-19-000092

Kehoe Berger, Wright, Alexander, Jr. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Wright, J Carol Wolff, acting individually and as the personal representative of the estate of James Michael Dean, Jr., initiated a civil action in the Circuit Court for Garrett County alleging that Charles P. Magal, M.D., and Allegany Imaging, P.C. (collectively "Appellees"), had committed medical malpractice in failing to diagnose the cancer that ultimately took Mr. Dean's life. Appellees thereafter filed a motion for summary judgment, arguing that Ms. Wolff had failed to present any evidence that the alleged malpractice had resulted in a recoverable harm. Following a hearing, the circuit court granted Appellees' motion. Ms. Wolff filed the instant appeal, presenting a single question for our review:

Did the circuit court err in granting Appellees' motion for summary judgment?

For reasons to follow, we hold that the circuit court did not err. We therefore affirm the court's judgment.

BACKGROUND

On May 26, 2015, Mr. Dean, age 54, presented at the Garrett County Memorial Hospital's emergency room complaining of abdominal pain, back pain, and nausea. The emergency room physicians performed several diagnostic procedures, including imaging of Mr. Dean's abdomen. Those images were later reviewed by Dr. Magal. After Dr. Magal concluded that Mr Dean's imaging revealed no notable abnormalities, Mr. Dean was discharged with a diagnosis of pancreatitis.

On November 7, 2015, Mr. Dean again went to the emergency room complaining of abdominal pain, and additional images of his abdomen were taken. Upon reviewing those images, the treating physicians discovered a "3.5 cm pancreatic body mass," and Mr. Dean was diagnosed with advanced pancreatic cancer. On December 27, 2015, Mr. Dean died of pancreatic cancer.

Civil Complaint

In 2019, Mr. Dean's mother, Ms. Wolff, acting individually and as the personal representative of Mr. Dean's estate, filed a complaint against Dr. Magal and his radiology practice, Allegany Imaging, P.C.^[1] Ms. Wolff's complaint set forth two causes of action, which were titled "Count I - Negligence (Survival Action)" and "Count II - Wrongful Death."

Under the first count (the "Survival Action"), Ms. Wolff alleged that, when Mr. Dean presented to the hospital in May 2015, he was not simply suffering from pancreatitis, as diagnosed by Dr. Magal, but rather had a "1.7 cm low density lesion in the body of the pancreas." Ms. Wolff alleged that Dr. Magal breached the standard of care in failing to recognize and diagnose the lesion as pancreatic cancer. Ms. Wolff alleged that, had Dr. Magal properly diagnosed the mass, Mr. Dean would have received appropriate treatment, such that it was "more likely than not that he would have survived." Ms. Wolff alleged that, as a result of Dr. Magal's negligence, Mr. Dean suffered damages including: severe physical pain; being robbed of the opportunity for proper treatment; being robbed of time to spend with his family; emotional pain and suffering upon being told in November 2015 that he had cancer; and losing the chance of treatment and survival.

Under the second count (the "Wrongful Death" action), Ms. Wolff alleged that Dr. Magal's negligence caused the death of Mr. Dean and resulted in various damages. Ms. Wolff also alleged, as she did in the Survival Action, that Dr. Magal's negligence caused "the loss of chance of survival" for Mr. Dean.

Deposition Testimony of Ms. Wolff's Expert Witness, Daniel Laheru, M.D.

Following the filing of her complaint, Ms. Wolff designated Daniel Laheru, an oncologist, as her expert witness. In December 2020, Dr. Laheru provided deposition testimony as to his expert conclusions regarding the facts of the case. Dr. Laheru testified that he reached those conclusions after reviewing, among other things, emergency room notes and images from Mr. Dean's initial visit to the hospital in May 2015, Mr. Dean's medical records and images from when he was diagnosed with cancer in November 2015, and oncology notes from the doctor who briefly treated Mr. Dean following his cancer diagnosis.

Dr. Laheru testified that, in looking at the medical records from May 2015, it appeared that Mr. Dean had "a mass in the body of the pancreas" that "could have been biopsied that wasn't." Dr. Laheru testified that, under those circumstances, Mr. Dean would have had a number of treatment options that "would have changed the quantity, potentially, and, hopefully, the quality of his life[.]"

Dr. Laheru testified that, when Mr. Dean returned to the hospital in November 2015, it was clear that he had Stage IV pancreatic cancer. Dr. Laheru testified that Mr. Dean had "a mass in the body of the pancreas" and "multiple liver lesions," which indicated that the cancerous mass in the pancreas had metastasized to the liver. Dr. Laheru testified that, by that time, Mr. Dean was too weak to receive any of the treatments that may have been recommended based on the circumstances known in May 2015.

Dr. Laheru also testified that it was "very likely" and "clear" that Mr. Dean had "metastatic disease to the liver back in May of 2015." Dr. Laheru opined that Mr. Dean's pancreatic cancer had already progressed to Stage IV when he was evaluated by Dr. Magal in May 2015. Dr. Laheru testified that, given that the cancer had already reached Stage IV by the time of Dr. Magal's evaluation, Mr. Dean's treatment options were severely limited and "would not have changed his diagnosis in the sense that it was metastatic pancreas cancer." Dr. Laheru added that "at some point, the chemotherapy would not have responded, and this would have taken his life, unfortunately, at some point." Dr. Laheru testified that the average survival rate for someone with Stage IV pancreatic cancer was "somewhere in the order of a year" and that the five-year survival rate was less than 2%.

Appellees' Motion for Summary Judgment

In April 2021, Appellees filed a motion for summary judgment and included, as an attachment, a transcript of Dr. Laheru's testimony. Appellees argued that, based on that testimony, Ms. Wolff could not sustain either of her claims because there was no evidence that Appellees' alleged negligence caused Mr. Dean's death. Appellees further argued that Ms. Wolff's "loss of chance of survival" claims should be rejected because such claims are not recognized in Maryland. Finally, Appellees argued that Ms. Wolff had not put forth any evidence that Mr. Dean suffered any other injury as a result of Appellees' alleged negligence.

Ms. Wolff's Response to Appellees' Motion for Summary Judgment

In her response, Ms. Wolff conceded that she could not meet her burden of proving that Appellees' negligence was the proximate cause of Mr. Dean's death. Ms. Wolff also conceded that, "under the current state of Maryland law . . . [her] claims for loss of chance of survival may not be viable[.]" She argued, however, that the case law regarding "loss of chance" claims "appears not to have ruled out the invitation to revisit this issue in a case with facts wherein the doctrine would apply." Ms. Wolff argued that her case was a prime candidate in which to revisit the issue because she could prove that Appellees' negligence caused Mr. Dean's loss of chance of survival.

In support of her claim for damages related to Mr. Dean's "loss of chance of survival," Ms. Wolff highlighted portions of Dr. Laheru's deposition testimony. That testimony was:

• [T]hat if Mr. Dean had been properly diagnosed with pancreatic cancer in or about May 2015 (the time of Defendants' malpractice), that Mr. Dean would have started chemotherapy, he would have been seen by gastroenterology for the concern for the mass in the pancreas, he would have been presented at a multidisciplinary conference, etc. And, the treatment would have changed the quantity, potentially, and hopefully, the quality of his life in that time period between his initial presentations in May and ultimately what ended up happening. Dr. Laheru also indicated that Mr. Dean lost essentially five months or so when he could have used that time to get started on chemotherapy that could have tried to slow the pace of the cancer[;]

• [T]hat during the window of time, from approximately May to June or July 2015, Mr. Dean would have been physically strong enough to have received the appropriate chemotherapy, however, by November, December, 2015, Mr. Dean's performance status had decline[d] substantially[;] • [T]hat in 2015, there were a lot of opportunities in the field of pancreas cancer, including clinical trials, some of which have led to FDA approval for medications, and that Mr. Dean never got the opportunity to look at these opportunities[;]

• [T]hat Mr. Dean never got the chance to fight[;]

• [T]hat due to the misdiagnosis, Mr. Dean was not afforded the opportunities for other treatments, including, psychological counseling, pain management (including nerve blocks) and nutrition management^[]; and that Dr. Laheru had two metastatic pancreas cancer patients who were on a study in 2015 that were still alive as of the date of the deposition, December 21, 2020[;]

• [T]hat even though the five[-]year survival rate from Stage 4 pancreatic cancer patients was less than two percent, Dr. Laheru indicated that "there are patients who - who beat this all the time[.]"

Ms Wolff argued further that, even if her "loss of chance" claims were not viable, summary judgment on the Survival Action was inappropriate because there was evidence establishing that Appellees' negligence caused other...