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ARTICLE ID 7621

$________ AWARD Binding arbitration - Delayed diagnosis of Ewing's sarcoma - Suit brought against HMO.

Orange County, California

The 26-year-old female claimant filed this binding arbitration action against the defendant HMO, in charge of her overall care and treatment during the time period in question. The claimant alleged that during the summer of ________, when the plaintiff developed pain in the left posterior rib area, the defendant failed to properly address the symptoms, causing a significant delay in diagnosis of Ewing’s sarcoma.

The evidence established that the claimant presented to the emergency room at Kaiser/Woodland Hills on August 14, ________, with an immediate history of sudden onset of pain in the left posterior rib area after physical exertion involving the moving of large boxes. The claimant was seen by medical personnel on duty and was diagnosed with "back strain"; she was prescribed Tylenol #3 and Robaxin.

The claimant returned to the urgent care clinic two days later, on August 16, ________, with similar complaints. During this second visit, the plaintiff was seen by Dr. Wendy Cohen, to whom she expressed pain so severe that she could not sleep at night. Dr.

Cohen changed the claimant’s medication to Elavil and Darvocet, and advised her that back strains take a long time to heal. The physician additionally offered that over time, Elavil should provide some relief of her pain.

The claimant purchased a new mattress, attempted massage and tried soaking in a warm tub to relive her pain. She did not return to Kaiser, however, until November 12, ________, at which time she was seen in the emergency room by Dr. Maryann Trephan. Dr.

Trephan did not examine the claimant’s back, but instructed her to apply warm compresses to the back and shoulder.

The claimant returned to Kaiser with her mother on November 15, p 7 3 ________, and again saw Dr. Wendy Cohen, whom she had seen on August 16, ________. She was diagnosed with "chronic back pain." At the insistence of the patient’s mother, Dr. Cohen referred her to physical medicine and physical therapy.

The claimant returned to Kaiser on November 17, ________, at which time she saw her internist, Dr. Atluri. She was diagnosed with "muscle pain," and was prescribed Flexeril. She then underwent several sessions of physical therapy and consulted with the Kaiser psychiatrist on November 24, ________. She was diagnosed with mild muscle strain and was instructed to perform stretching and strengthening exercises of the left mid-back muscle.

After several additional physical therapy encounters, the claimant returned to Dr. Atluri on January 4, ________, at which time a fist-sized soft tissue mass in the posterior ribs was noted. A chest x-ray was performed, as was a CT scan, leading to diagnosis of Ewing’s sarcoma on January 7, ________. The claimant then underwent adjuvant chemotherapy followed by surgery. It was reported that the surgical margins were clear, but in June of ________, a CT scan revealed recurrence of the tumor. The claimant underwent additional chemotherapy and surgery, but her treatment regimen at this time is palliative only.

The claimant argued that the standard of care as of August 16, ________, and certainly in November ________, mandated that an x-ray of the posterior ribs be performed. This would have been diagnostic of cancer at that time. The claimant argued that by virtue of the delay, the Ewing’s sarcoma grew from the eighth posterior rib toward the midline, such that it involved the pleura, at the time of diagnosis. Although the surgical margins were purportedly clear (Kaiser did not produce the pathology report), the area of recurrence was abutting the pleura and vertebral bodies. Had the cancer been diagnosed at any time through the month of November, the claimant would have had the benefit of a 65% likelihood of cure.

The claimant sought damages for terminal Ewing’s sarcoma. Past loss of earnings and future "lost years" of earnings per Feing v.

Permanente Medical Group . The claimant was, prior to the onset of symptoms, accepted to law school, and it was argued that her future wage loss should be determined based upon the rate of a public sector attorney, which the claimant had aspired to be.

The respondent denied negligence, asserting that the claimant’s presentation was classic for back strain/sprain and that the treatment ordered was appropriate for such. The respondent also argued that the claimant suffered recurrent disease due to the presence of a non-type 1 EWS/FLI transulation gene, which is typically lethal. However, the respondent presented no evidence that the claimant’s pathology specimen was even tested by way of immunohistochemical assay or protein/genetic analysis for this "bad gene." The plaintiff was awarded $________. The breakdown of the award was as follows: future lost earnings ($________ future value or $________ present value); $________ past lost earnings and $________ general damages.

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