MEDIA – Crozer Health Care System defendants deny they committed negligence in missing the cancer diagnosis of a Delaware County woman’s now-deceased husband, arguing that the complaint fails to state a claim upon which relief could be granted.
Mary Cynthia King (Executrix of the Estate of Harry Hartman King III) of Chadds Ford first filed suit in the Delaware County Court of Common Pleas on Oct. 4 versus Crozer-Keystone Health System entities, Damon R. Soeiro, M.D., Southeast Radiology, Ltd. of Crozer-Chester Medical Center Department of Radiology, Pulmonary Consultants, Inc., Pierre G. Frederique, M.D., Wei Bin, M.D., Donna Delfin, D.O. and Prospect Health Access Network, Inc.
“Plaintiff’s decedent, Mr. King, had regularly engaged defendant Delfin as his primary care physician. As part of this treatment relationship, Mr. King advised defendant Delfin that he had formerly been smoker for over thirty years. Plaintiff’s decedent also had a medical history that included Chronic Obstructive Pulmonary Disease (COPD), Obstructive Sleep Apnea (OSA) on and required the use of a CPAP machine with supplemental oxygen at bedtime,” the suit said.
“In 2017, defendant Delfin referred Mr. King to defendant Pulmonary Consultants, Inc., for treatment of his COPD and OSA. From 2017 until 2019, Mr. King’s COPD and OSA was treated by pulmonologist, defendant Dr. Bin and defendant Pulmonary Consultants, Inc. On March 12, 2018, Mr. King was seen at defendant Pulmonary Consultants, Inc.’s office by defendant Dr. Bin. Mr. King presented with significant oxygen desaturation. His oxygen saturation level on room air at rest was 90 percent and with exertion was 83 percent.”
King added that Dr. Bin then admitted Mr. King to Crozer Chester Medical Center for acute hypoxemic respiratory failure and subsequent tests revealed “a possible faint opacity within the right lower lobe”, interpreted by defendant Dr. Soeiro as “advanced centrilobular emphysema.”
“Notwithstanding, none of the defendants ordered any further tests or examinations of plaintiff’s decedent. No follow up or comparative tests or studies were ordered, including but not limited to a PET-CT scan. At no time following the March 12, 2018 CT scan did any of the defendant doctors advise plaintiff or plaintiff’s decedent that there was suspicion for malignancy in the aforementioned study,” per the suit.
“In the spring months of 2019, plaintiff’s decedent relayed to defendant delfin increased complaints of pain in his left chest secondary to increased coughing and fear of a fractured rib. On or about May 8, 2019, plaintiff’s decedent underwent a Chest X-Ray which revealed a ‘left upper lobe opacification measuring 3.6 x 3.5 cm is likely a neoplasm’ and a CT scan of the rest was required for further evaluation. On or about May 10, 2019, plaintiff’s decedent underwent a Chest CT with contrast which revealed a ‘highly spiculated left upper lobe pulmonary parenchymal mass measuring up to 5.1 cm, most in keeping with primary bronchogenic carcinoma, and there is a broad base of contact along the pleural surface with possible extension into the left chest wall.”
Thereafter, plaintiff’s decedent commenced significant and painful treatment, including chemotherapy and immunotherapy beginning in August of 2019.
The suit said that despite the aggressive attempts at treatment, the plaintiff’s decedent’s cancer metastasized and spread to his lymph nodes and ribs. The plaintiff’s decedent ultimately perished from stage 4 squamous cell carcinoma of the lung on Feb. 26, 2020.
The plaintiff filed a motion for consolidation on Nov. 8, seeking to combine the instant litigation with a prior case she filed connected to the same events, last year.
“This is a motion to consolidate two medical malpractice lawsuits, which arise out of the same alleged negligent medical care provided to plaintiff’s decedent, Harry Hartman King III, which led to a delayed cancer diagnosis and ultimately the untimely death of Mr. King. On Feb. 24, 2020, plaintiff and the decedent initiated the lawsuit Harry H. King, III and Mary Cynthia King (h/w) v. CKHS, Inc., individually and f/k/a Crozier-Keystone Health System, Et.Al., No. CV-2020-001885, by way of Writ of Summons. On Sept, 20, 2020, plaintiff filed her complaint,” according to the motion.
“Subsequent to filing her complaint, plaintiff obtained more of the decedent’s medical records and in the course of reviewing those records, Plaintiff was able to identify additional defendants, Wei Bin, M.D., Pierre G. Frederique, M.D., and Pulmonary Consultants, Inc., all of whom played an intricate role in the care provided to plaintiff’s decedent which led to the delay in his cancer diagnosis and ultimately his death. Accordingly, on Oct. 4, 2021, plaintiff initiated the suit, Mary Cynthia King, Executrix of the Estate of Harry Hartman King, III v. CKHS, Inc., individually and f/k/a Crozier-Keystone Health System, Et.Al., No. CV-2021-008373.”
The plaintiff argued the two actions should be consolidated because both suits “arise from the same alleged negligent medical care provided to plaintiff’s decedent, which led to his delayed cancer diagnosis and untimely death.”
“The above captioned cases clearly involve common and, in fact, identical questions of law and fact. Therefore, it is in the interests of all parties and the Court that these matters be consolidated for discovery and trial to economize time and expense to the Court and to the parties involved,” the motion stated.
“This motion, if granted, would neither prejudice nor adversely affect the rights of any party to these actions. Rather, all parties will benefit by the convenience and efficiency of consolidation. If the cases are not consolidated, the parties and Court will incur unnecessary expenses and the outcomes of the two lawsuits may be inconsistent. Accordingly, for the foregoing reasons, it is respectfully requested that plaintiff’s motion be granted and the cases consolidated.”
UPDATE
In an answer to the case and related new matter filed Nov. 24, the Crozer Health Care System defendants denied all allegations of negligence levied against them by the plaintiff.
“Plaintiffs’ complaint fails to state a cause of action upon which relief may be granted. Plaintiffs’ complaint fails to state a cause of action as to unnamed and unidentified “agents, ostensible agents, servants and/or employees” of answering defendants. Answering defendants acted, at all times relevant hereto, within the applicable standards of care and were not negligent. Any actions or omissions of answering defendants alleged to constitute negligence, the same being specifically denied with proof demanded at trial, were not the factual, legal, or proximate cause of plaintiffs’ alleged injuries and damages,” the new matter stated, in part.
“Plaintiffs’ claims may be barred, in whole or in part, by the applicable statute of limitations. Plaintiffs’ claims may be barred, in whole or in part, or reduced by the contributory and/or comparative negligence of plaintiffs. Plaintiffs’ claims may be barred, in whole or in part, by the doctrine of assumption of risk. Plaintiffs’ claims may be barred, in whole or in part, by the doctrine of contributory negligence.”
The defense added the plaintiff’s claims and/or request for damages is barred or limited by the provisions of the Medical Care Availability and Reduction of Error (MCARE) Act and that the plaintiff failed to mitigate any damages allegedly sustained.
For counts of survival, wrongful death, negligence, vicarious liability and corporate negligence, the plaintiff is seeking, jointly and severally, in excess of $50,000, plus interest, delay damages, costs of suit, as well as all damages legally appropriate at the time of jury trial.
The plaintiff is represented by James J. McEldrew III, Daniel N. Purtell and Marcus A. Washington of McEldrew Young Purtell, in Philadelphia.
The defendants are represented by Benjamin A. Post and Zachary R. Fowler of Post & Post, plus Frank A. Gerolamo, Daniel J. Divis and Joseph L. Garbarino III of Gerolamo McNulty Divis & Lewbart, all also in Philadelphia.
Delaware County Court of Common Pleas case CV-2021-008373
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com