LANCASTER – A Lancaster doctor and his practice deny responsibility for the death of a man who underwent a debridement procedure on his throat, and instead redirected that liability to third-parties.
Wendy B. Smith (as Administratrix of the Estate of Robert Aril Smith, deceased) filed suit in the Lancaster County Court of Common Pleas on May 12 versus Robert B. Belser Jr., M.D. and Lancaster Otolaryngology (doing business as “Rosenfeld, Belser & Davis”). All parties are of Lancaster.
“Robert Aril Smith (date of birth: Jan. 27, 1959) had a history of pulmonary embolism and was on chronic anticoagulation (Xarelto). On July 20, 2020, Mr. Smith presented to defendant practice for an appointment with defendant Dr. Belser. According to the medical records, Mr. Smith complained of a throat/tonsillar problem and dysphagia. Defendant Dr. Belser performed a physical examination, which revealed a very large right tonsil that he noted was concerning for a neoplastic process. Defendant Dr. Belser ordered a CT scan of Mr. Smith’s neck, which was performed on July 22, 2020,” the suit said.
“The CT scan was interpreted to reveal a ‘large, infiltrative, trans-spatial mass centered on the right tonsillar pillar and right soft palate...findings are suspicious for metastatic squamous cell carcinoma.’ A biopsy was subsequently performed, and Mr. Smith was diagnosed with Stage III HPV positive tonsillar cancer. The medical records note that with combined chemotherapy and radiation, the treatment goal for Mr. Smith’s cancer was curative. Mr. Smith began chemotherapy and radiation therapy in September 2020. On Oct. 23, 2020, Mr. Smith presented to defendant practice for a follow-up appointment with defendant Dr. Belser.”
At that time, defendant Dr. Belser noted the decedent had two days left of radiation therapy and his tumor had disappeared. Meanwhile, three months later, on Jan. 21, 2021, Mr. Smith presented to the Ann B. Barshinger Cancer Institute for a follow-up appointment with radiation oncologist, Pamela Boimel, M.D.
Dr. Boimel noted that Mr. Smith was “still recovering from the side effects of treatment with a right pharyngeal wall ulcer and thrush”, believing that the decedent’s diabetes and nutrition issues during and after his treatment were contributing to some delayed healing. As a result, Dr. Boimel prescribed Nystatin and recommended Mr. Smith return to Dr. Belser.
“On Jan. 27, 2021, Mr. Smith presented to defendant practice for an appointment. On physical examination, defendant Dr. Belser noted that Mr. Smith had a right-sided palate defect and yellow debris on the posterior pharyngeal wall up into the nasopharynx. According to the medical records, defendant Dr. Belser suspected that the debris was necrosis, and he debrided the area. Defendant Dr. Belser recommended follow-up in one month. On Jan. 28, 2021, at approximately 8:49 p.m., Mr. Smith presented to the Lancaster General Hospital Emergency Department with complaints of bleeding from his mouth,” the suit stated.
“According to the medical records, Mr. Smith reported that he ‘had procedure with ENT yesterday, where they scraped the back of my throat for cells’ and noted bleeding 30 minutes ago while sitting in his house, that he was on Xarelto and was currently undergoing treatment for throat cancer. Mr. Smith was admitted to the hospital for treatment. Prior to being moved into a treatment room, Mr. Smith had ‘a massive exsanguinating hemorrhage from the mouth. Mr. Smith went into cardiac arrest. Cardiopulmonary resuscitation was initiated, but was ultimately unsuccessful. Mr. Smith died on Jan. 29, 2021, at 2:21 a.m. The medical records and death certificate list his cause of death as exsanguination secondary to hemoptysis in the setting of tonsillar cancer and anticoagulation use.”
The suit said that given Mr. Smith’s medical history and use of anticoagulation medication, the defendants were negligent in performing a debridement procedure on the decedent, which the litigation alleges led to his untimely death.
UPDATE
In a July 18 answer to the complaint (along with new matter), the defendants hereby denied responsibility for Mr. Smith’s death.
“Plaintiff’s complaint, in whole or in part, fails to state causes of action cognizable under Pennsylvania law as against defendants. To the extent applicable, or to the extent that it may later prove to be applicable, defendants hereby plead the statute of limitations and the statute of repose referable to personal injury actions in Pennsylvania to preserve these affirmative defenses for the record,” the answer’s new matter stated.
“At all times and for all purposes relevant to the events set forth in plaintiff’s complaint, Dr. Belser acted appropriately and in accordance with standards of otolaryngology care applicable under similar circumstances and he in no way negligently caused, negligently contributed to cause or negligently increased the risk of causing any injury or damage to plaintiff or plaintiff’s decedent. Defendants did not negligently cause, negligently contribute to cause, or negligently increase the risk of causing any injury or damage to plaintiff or plaintiff’s decedent.”
The answer added that any such negligently-caused injury to the plaintiff and her decedent was instead the result of acts or omissions of third persons other than the defendants, and for whom the defendants are in no way liable or responsible.
“Defendants hereby plead all rights and defenses available under the Medical Care Availability and Reduction of Error Act. Plaintiffs’ claims may be barred and/or limited as against defendants by the provisions set forth in Pennsylvania’s Fair Share Act. To the extent applicable, or to the extent that it may later prove to be applicable, defendants hereby plead contributory negligence and/or assumption of the risk. Plaintiff’s claims for special damages may be reduced and/or limited by any collateral source of compensation and/or benefits received in accordance with the Supreme Court of Pennsylvania’s decision in Moorhead v. Crozer Chester Medical Center,” the new matter continued.
For counts of negligence, vicarious negligence, survival and wrongful death, the plaintiff is seeking damages in excess of $50,000, plus interest and costs as allowed by law.
The plaintiff is represented by Robin A. Jabour and Melissa A. Jabour of Atlee Hall, in Lancaster.
The defendants are represented by Michael M. Badowski and Anthony J. Gabriel of Margolis Edelstein, in Camp Hill.
Lancaster County Court of Common Pleas case CI-22-02769
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com