Vincent Santiago consulted Golden, an otolaryngologist because he had been experiencing dizziness and pain in his tongue and left ear and received an initial tongue scraping biopsy in February 2013. A dermatopathologist who evaluated the biopsy concluded that the test was “superficial, fragmented and small limiting more definitive diagnosis” and that further testing should be performed to correlate the results because they may not represent the entire lesion. However, no further action was taken…law360, Maryland Court Orders New Trial In Cancer Death Suit, Sarah Jarvis, 2020

After Santiago’s death in April 2015 from oral cancer, his wife and two adult children filed a complaint in June 2018 alleging negligence in failing to timely diagnose Santiago’s cancer. Their complaint included wrongful death claims and a survival claim.

At trial, on the family’s behalf, Dr. Stewart Packer, a causation expert in the field of medical oncology and haematology, testified that Santiago would have recovered and his prognosis for survival would have been 70% to 80% had the cancer been diagnosed in Feb 2013 itself. When it was actually discovered an year later, the survival rate dropped to 50% to 55%.

The defendant Golden argued that the loss of chance was applicable to both survival claim and wrongful death claims and because Santiago’s chance of survival was still more than 50%, it was not likely that the doctor’s conduct caused Santiago’s death. Based on this appeal, the trail court granted Golden’s dismissal motion saying that Maryland does not recognize damages for the loss of chance of survival.

Vacating this ruling , the appellate court said that the plaintiffs never sought or even mention loss of chance damages in their amended complaint and that Santiago’s chance of survival when Santiago first met with Golden in February 2013 was 70% to 80% anyway, according to Packer. Therefore, the loss of chance doctrine did not apply.

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Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD