. .

Invest in your success.
JVRA helps lawyers win cases by providing critical information you can use to establish precedent, determine demand and win arguments.



Polk County

This medical malpractice action was brought by a female plaintiff who contended that when she was 12 years old, the defendant pathologist, based on biopsy and medical history, misdiagnosed the plaintiff as suffering from gemistocytic asterocytoma of the left frontal lobe and prescribed radiation therapy. The plaintiff maintained that the prescribed radiation therapy caused her to suffer severe neurological impairment manifested by severe intellectual and motor deficits. The plaintiff contended that she sustained total loss of motion except for the right arm and some random movement of the left arm and also suffers from limited speech ability and limited intellect. The plaintiff alleged that she did not suffer from a brain tumor, but rather suffered from multiple sclerosis. The plaintiff further contended that the defendant therapeutic radiologists negligently administered excessive doses of radiation, causing her to develop much of the subject deficits.

The plaintiff argued that the deficits caused by her underlying disease process and the deficits caused by the alleged excessive radiation treatment could not be distinguished from each other and that the radiation aggravated the plaintiff’s condition in such a way that the resulting deficits could not be allocated.

The plaintiff maintained that the defendant pathologist failed to properly diagnose the biopsied tissue as multiple sclerosis and that as a general pathologist he was negligent in failing to obtain a consulting opinion prior to prescribing radiation therapy. The plaintiff asserted that the defendant therapeutic radiologist should have obtained a second opinion prior to administering the second course of radiation therapy and should have referred the plaintiff to a physician more experienced in pediatric radiation and pathology. The plaintiff contended that the defendant hospital, as employer of the three defendant physicians, was vicariously liable.

The plaintiff contended that she presented to her treating neurologist in April ________ with right hemiplegia and a visible mass on a CAT scan. Subsequent to the diagnosis of a brain tumor by the defendant pathologist, the plaintiff received six weeks radiation therapy which consisted of ________ rads. The plaintiff asserted that at this time, she began to exhibit neurological deficits on the left side of her body and a second mass, on the right side of the brain, was revealed by another CAT scan. The plaintiff maintained that the defendant therapeutic radiologist administered a second course of radiation therapy consisting of ________ rads. As further radiation treatment was administered one of the defendant therapeutic radiologists began to question whether the plaintiff was suffering from a brain tumor and obtained a second opinion, after which the plaintiff was referred to a teaching hospital in Gainesville for evaluation. A biopsy of the right side mass was performed as well as re-cutting and re- staining the biopsy of the left side tumor.

The plaintiff’s expert neuropathologist diagnosed the white matter as a demylinating disease most consistent with multiple sclerosis. The plaintiff’s radiation therapy ceased with this diagnosis. The plaintiff asserted that over the next 3 1/2 years she was followed by numerous treating physicians who followed the progression of her neurological disease and that during this period she retained the diagnosis of multiple sclerosis. The plaintiff’s condition progressed from the initial presentation of right hemiplegia to left hemiplegia which never improved and then continued to deteriorate to the point of quadriplegia and severe intellectual impairment.

The plaintiff’s expert pathologist, testifying as to the applicable standard of care, asserted that the defendant pathologist misdiagnosed the mass as a brain tumor and that he was negligent in failing to obtain a second opinion. The plaintiff’s expert neuropathologist, testifying by videotape, asserted that he examined the plaintiff’s pathology slides and diagnosed multiple sclerosis. However, this expert further asserted that he would not fault one for missing this diagnosis.

The plaintiff’s examining neuropathologist, who made the diagnosis at the Gainesville teaching hospital, testified that he believed that the plaintiff suffered from multiple sclerosis.

This neuropathologist also stated that he would not fault one for making a different diagnosis.

The defendant pathologist testified that he believed he made a correct diagnosis and that the plaintiff did, in fact, suffer from brain tumors known as glioma. He asserted that these tumors can spread somewhat rapidly, particularly across the mid-line of the brain. This defendant contended that it is exceedingly rare for a tumor associated with multiple sclerosis to behave in this manner. This defendant further argued that it is very rare for multiple sclerosis to strike an individual as young as the plaintiff, that multiple sclerosis rarely presents itself as a mass lesion on a CAT scan, and rarely exhibits, as these tumors did, a ring enhancement. The defendant pathologist maintained that he made the proper diagnosis.

The defendant pathologist’s expert neuropathologist, having examined the plaintiff’s slides and history as it was presented to this defendant, diagnosed the plaintiff as suffering from brain tumors and not multiple sclerosis. This defendant’s additional neuropathologist also performed the same examination and although he would not use the term gemistocytic to classify the material, diagnosed brain tumors. The defendant’s expert pathologist diagnosed gemistocytic asterocytoma. This expert further asserted that he did not feel a second opinion was necessary unless there was a doubt as to whether the slide represented a brain tumor. The defendant pathologist’s expert neurologist examined the plaintiff and, by deposition, contended that she did not suffer from multiple sclerosis, but most likely suffered from brain tumors. This defendant’s expert neuroradiologist examined the plaintiff’s entire series of films, including CAT scans and MRI’s, and although the presentation on some of the films could not be explained, determined that the plaintiff suffered from nothing other than brain tumors.

The defendant therapeutic radiologists testified that they were justified in administering the initial round of radiation therapy based on the recommendation of the plaintiff’s treating neurologist and the diagnosis rendered by the defendant pathologist. These defendants also contended they were justified in their treatment due to the way the mass behaved, which was consistent with brain tumors. These defendants further maintained that the proper treatment regimen was administered and that the highest rad dose received at any one point of the brain was ________ rads and this was to a very limited area. They asserted that most areas of the brain received no more than ________ rads. These defendants presented a model of the brain and several blow-ups to demonstrate the treatment fields and how the radiation was directed. Overlays were also presented to demonstrate the severity of the underlying disease process. These defendants further contended that the tumors shrunk somewhat in size and the defendants’ expert radiation oncologist and therapeutic radiology specialist contended that the defendant therapeutic radiologist followed proper standards of care and rendered reasonable treatment. This expert did not offer an opinion as to a diagnosis of the underlying disease. The defendants’ expert neurosurgeon asserted that the proper radiation therapy was administered to the lesion and that it was absolutely reasonable given the surgical, clinical and radiographic presentation of the lesions to believe them to be nothing other than brain tumors. This expert maintained that the plaintiff was destined to develop severe impairment given the size of the tumors, which were approximately the size of tennis balls. The defendant hospital was granted a directed verdict at the close of the plaintiff’s case. The jury found for all defendants and determined no negligence. Plaintiff’s expert pathologist: Dr. Michael Kaufman of Chicago. Plaintiff’s expert neuropathologist: Dr. Haruo Okazaki from the Mayo Clinic in Rochester, Minn. Plaintiff’s expert and examining neuropathologist: Dr. Stephen Hunter from Shands Teaching Hospital in Gainesville. Defendant pathologist’s expert neuropathologist: Dr. Stephen Vogel from Duke University in Durham, N.C. Defendant pathologist’s additional neuropathologist: Dr. John Moussy of Pittsburgh. Defendant pathologist’s expert pathologist: Dr. James Holiman of Lakeland.

Defendant pathologist’s expert neurologist: Dr. Charles Posner from Harvard University in Cambridge, Mass. Defendant pathologist’s expert neuroradiologist: Dr. Reed Murtagh of Tampa.

Defendant therapeutic radiologist’s expert radiation oncologist and therapeutic radiology specialist: Dr. Jerry Sokol of Tampa and Washington, D.C. Defendant therapeutic radiologist’s expert neurosurgeon: Dr. Horace Norrell of Sarasota. Johnson vs. Cox, M.D., Bhutiani, M.D., Halili, M.D. and Winter Haven Hospital.

Case no. 87-________; Judge Charles Curry, 4-27-90. Attorneys for plaintiff: Robert Beckham and Lori Scott in Jacksonville and Miami; Attorney for defendant pathologist: Howard Hunter in Jacksonville; Attorney for defendant therapeutic radiologists: William Partridge in Sarasota.

To read the full article, please login to your account or purchase

5 ways to win with JVRA

JVRA gives you jurisdiction-specific, year-round insight into the strategies, arguments and tactics that win. Successful attorneys come to the table prepared and use JVRA to:

  1. Determine if a case is winnable and recovery amounts.
  2. Determine reasonable demand for a case early on.
  3. Support a settlement demand by establishing precedent.
  4. Research trial strategies, tactics and arguments.
  5. Defeat or support post-trial motions through past case histories.

Try JVRA for a day or a month, or sign up for our deluxe Litigation Support Plan and put the intelligence of JVRA to work for all of your clients. See our subscription plans.