Cancer patient awarded $1.95M in VA lawsuit: 'They were doctors. I took their word'
By PATRICK LAKAMP | The Buffalo News | Published: January 3, 2021
BUFFALO, N.Y. (Tribune News Service) — It was during a doctor's appointment seven years ago when Gerald Culhane complained about a three-month-old lump in his neck.
His primary care doctor at the Buffalo VA Medical Center, worried it could be a tumor, ordered a CT scan. So the report back from the radiologist in September 2013 came as a relief: "Good news," the doctor wrote in her primary care note. "No evidence of a ... tumor that will require biopsy."
No follow-up was scheduled.
In April 2015, Culhane called his primary care provider about "a growth on the left side of my face which seems to be growing fast."
This time — after another scan of his neck proved worrisome — an ear, nose and throat specialist at the medical center did a biopsy, and it came back consistent with squamous cell carcinoma. The 2013 CT scan of Culhane's neck "does not discuss this mass," the specialist noted, according to federal court records. Doctors eventually found the primary malignancy in his left tonsil.
Twenty months after first complaining about the lump in his neck, the Orleans County resident began 40 radiation treatments and seven cycles of weekly intravenous chemotherapy, which he completed in August 2015. When the cancer recurred in his tonsil in January 2017, he underwent a radical tonsillectomy and a left modified neck dissection.
Culhane sued the U.S. government in 2017 over his care at the Buffalo VA Medical Center, which his lawyers described as a "total system failure" that included misinterpreted scan results and a lack of follow-up that would have diagnosed his cancer sooner. A federal judge Monday awarded him and his wife, Carol Culhane, $1.95 million, mostly for pain and suffering.
"They were doctors. I took their word," said Culhane. "They said there wasn't anything to worry about."
Now he always worries.
"I think about it every day," said Culhane, 76, who served as a Marine in Vietnam. "If they had caught this thing early, it's a 93% cure rate. Now they tell me I have a 50/50 chance of it coming back. Every time I get a pain somewhere, I wonder what it is. Is it coming back?"
In her decision, U.S. District Judge Elizabeth A. Wolford called it an undisputed fact that the abnormal enlargement of Culhane's left cervical lymph node, clearly visible on the September 2013 neck CT scan, was not identified and acted upon when it should have been. The diagnosis and treatment of his throat cancer was delayed by 20 months, she wrote.
The matter in dispute in Culhane's lawsuit was whether the 20-month delay caused the recurrence in Culhane's throat cancer necessitating surgery in 2017.
Assistant U.S. Attorney Mary E. Fleming, in her closing argument for the bench trial, acknowledged the mistake at the Buffalo VA Medical Center in 2013.
After the primary care doctor ordered the CT scan with and without contrast dye, Fleming told the court, a CT scan without contrast was performed by a radiologist "who determined — incorrectly as the government acknowledges — that Mr. Culhane did not have cancer." Because the radiologist "determined that no cancer was present, no ear-nose-throat consultation was ordered."
The failure to diagnose his carcinoma in 2013 departed from the standard of care, according to a written submission to the court from the government.
But the government offered expert testimony asserting Culhane had an 80% to 85% chance of survival had the diagnosis been made in September 2013, and Culhane's chance of survival remains the same.
"Although the government has conceded that it delayed in diagnosing Mr. Culhane's tonsil cancer, the proof at trial showed that Mr. Culhane was not damaged by that delay as his chance of survival remains the same whether he was diagnosed in 2013 or 2015," Fleming said in her closing argument.
Culhane's lawyers, John T. Loss and Andrew M. Debbins of Connors LLP law firm, argued at the trial that the 20-month delay increased Culhane's chance of recurrence.
"Isn't it something that the government could not find a single head-and-neck oncologist to support its defense that a 20-month — 20 months! — delay didn't matter?" Loss said in his summation. "No, it isn't. Because early detection saves lives. Early treatment saves lives. No medical literature ... states that a 20-month delay doesn't matter."
The U.S. Attorney's Office declined comment since the judge asked for additional briefings.
In her decision, Wolford said she found persuasive the testimony from the medical expert brought in by Culhane's lawyers. In the expert's opinion, the amount of time between September 2013, when Culhane could have been diagnosed with squamous cell carcinoma, and May 2015, when Culhane was diagnosed, caused the 2017 recurrence of his cancer.
The enlargement of a lymph node, nearly double its September 2013 size, showed that Culhane's cancer progressed and that the number of cancer cells increased during the 20-month delay in diagnosis, the judge said, citing the medical testimony.
The medical expert noted Culhane's recurrence happened in the area where he had received radiation treatment, evidence of resistant cells.
When Culhane underwent the radical tonsillectomy and a left modified neck dissection in March 2017 at Erie County Medical Center, the surgical procedure took five hours, longer than the usual three to four hours.
"Based on these opinions, the court finds that it is more likely that Mr. Culhane will have another recurrence because he has already had a recurrence," Wolford said. "Further, the court finds that if Mr. Culhane does have a second recurrence, it would increase the chances of him dying as a result of the cancer."
On a separate claim, the judge ruled Culhane failed to establish medical malpractice that the medical center failed to timely diagnose his malignant melanoma when a skin lesion on his right temple was examined. The medical center's dermatology clinic determined it was benign in April 2014. Ten months later, a dermatologist in Rochester, seeing Culhane for a different skin issue, noticed the lesion, performed a biopsy and confirmed the diagnosis of a malignant melanoma.
Culhane said he hopes the verdict will help other veterans get proper care and treatment.
"There's a lot of good people who work there and take veterans' care at heart," he said. "There's a few who don't seem to care, don't seem qualified to do the job they're doing. And they seem to stay on."