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Health: Jury finds for doctor in cancer malpractice suit

By Jackie R. Broach
Coastal Observer

Dr. Amanda Drosieko and her practice, Inlet Pediatrics, were not responsible for the 2008 death of a Pawleys Island area teen, Ashley Gaines, a jury decided on Monday.

The verdict came at around 5:30 p.m., after about two hours of deliberation following five days of testimony from a series of expert witnesses, Drosieko and two of her colleagues, and Ashley’s parents, David and Melanie Gaines. The jury — comprised of eight women and five men — was in court for one additional day, hearing opening statements from attorneys.

As the verdict form was read aloud, relief was palpable in Drosieko’s camp. The jury found in her favor on every cause of action. Someone sobbed in the background as she turned and hugged first her attorneys, then one of the colleagues who had been by her side throughout the trial and who, though not named in the lawsuit, had also been assigned a share of blame in the case.

On the other side of the courtroom, the Gaines family was somber throughout the reading. Their eyes glittered with tears as they left, David’s arm wrapped around Melanie’s waist.

The Gaineses filed a medical malpractice suit against Drosieko and Inlet Pediatrics in October 2010. Their attorneys argued that failure to diagnose Ashley’s cancer earlier played a role in her death. She died in 2008 due to complications related to treatment for the disease at Morgan Stanley Children’s Hospital of New York-Presbyterian. She was 18.

Ashley was treated several times at Inlet Pediatrics by three health care providers between October 2006 and her diagnosis with Stage 3 non-Hodgkins lymphoma in April 2007.

Between Drosieko, Dr. Melissa McCabe and Dawn Fox, a nurse practitioner, Ashley was diagnosed and treated in that time for ailments including viral pharyngitis (the most common cause of a sore throat), mononucleosis and lactose intolerance. She was also tested for strep throat and pregnancy, and treated for a soccer injury that was the cause of one of her visits during that period.

A physical exam and palpation of the abdomen during doctor’s visits didn’t turn up anything abnormal.

However, radiographs ordered in April showed Ashley had a large tumor in her abdomen and a larger one in her chest.

For the Gaineses to have won their case, they would have had to prove to a reasonable degree of medical certainty that Ashley most probably would have survived if her diagnosis had come earlier.

“The truth is we can’t know that,” an attorney for Drosieko, Hugh Buyck of Buyck & Sanders, told the jury in his closing statement.

Even if Ashley had been diagnosed in January, her cancer would still have been classified as Stage 3 and treatment would have been the same, testified Dr. Daniel McMahon, director of the division of pediatric hematology and oncology at Levine Children’s Hospital in Charlotte.

Stage is one of the biggest indicators of how a cancer patient will do in treatment, he told the court. A child with cancer in the chest would automatically be classified in Stage 3.

Ashley’s chances of survival would have also been the same —80 to 90 percent — but some people simply don’t respond as well to treatment as others. They have resistant cells, so though a tumor might shrink, the cells left behind are more aggressive, he explained.

“This child failed because she had resistant disease,” McMahon said. An earlier diagnosis wouldn’t have changed that, he added. He has seen patients with larger tumor bulk than Ashley’s successfully treated, while patients who would seem to have much higher chances haven’t survived.

There was nothing to support the claim that Ashley would have been any more likely to survive if diagnosed earlier, he said.

However, Dr. Mitchell Cairo, who treated Ashley at Morgan Stanley told the jury a different story earlier in the trial. He is also a pediatric oncologist and hematologist, and is considered a leader in his field.

If the cancer had been picked up earlier, perhaps in January instead of April, “she could have been alive today,” he told the court. He thinks she would have been cured, he said. The cure rate for the kind of cancer Ashley had is about 85 to 90 percent if it’s caught early, he added. By the time Ashley’s cancer was found, he said he gave her a “less than 50 percent chance” of survival.

Drosieko, McCabe and Fox all testified they met the standard of care and did everything they reasonably should have for Ashley based on the information they had at the time. They took the time to listen to Ashley, they said, and even in retrospect, said she received quality care.

Over the course of the trial, questions were raised about whether Ashley’s parents followed medical advice they were given regarding Ashley, and whether they and Ashley adequately and accurately described what was going on with her health while she was a patient at Inlet Pediatrics.

Taking the stand on Thursday, Melanie Gaines said she did everything she thought she should for her daughter, that she and Ashley were honest with health care providers and that they put their faith in those at Inlet Pediatrics and were ultimately failed.

Melanie quit her job to be a full-time mother, she told the court. She took Ashley and her other child, David Jr., where they needed to go and always followed instructions relating to their care.

“I’m a rule follower,” she said.

She recalled Ashley’s diagnosis with mononucleosis, an ailment someone on her tennis team at Waccamaw High had recently had. Melanie didn’t know much about the condition, other than that it makes people who have it tired and it takes a long time to get over it, so she attributed issues Ashley had to mono for some time. Trusted care providers told her Ashley had it and she had no reason to doubt them.

“I’m a mother and they were the medical providers,” she said.

When Ashley was diagnosed with lactose intolerance, she again had no reason not to believe the doctors and thought it must be a terrible disorder to cause Ashley’s symptoms.

She said it was the end of December or early January when Ashley started having episodes of vomiting so severe she would give up on going back to bed and sleep on the bathroom floor. Melanie thought at first it was a virus. But when Ashley went on a college visit with her family on Jan. 12, the situation got worse. Ashley vomited the whole way home, she said, but it wasn’t normal. It was “the most horrendous smelling stuff,” she recalled and she called Inlet Pediatrics saying she could have Ashley there that day. She said they told her they only saw well patients that day and Melanie could bring Ashley in the following day, which she did.

Drosieko, McCabe and Fox told the jury they hadn’t been aware of the incidents where Ashley slept in the bathroom or that her vomit was reported as smelling like fecal matter. Melanie said they certainly were aware.

McCabe also recalled thinking the Gaineses didn’t seem very concerned about what was going on with Ashley at a visit where she treated the teen. At that visit, Ashley said she hadn’t eaten in more than 24 hours.

“The whole thing was so odd,” McCabe said. “There was no sense of urgency.”

According to testimony, there were two incidents where stool samples from Ashley were requested and not delivered.

Melanie denied that.

“I followed all the instructions provided,” she said.

One night Ashley was so sick and in so much pain that Melanie called Fox, who was at the time a neighbor. She “felt funny” doing it and didn’t want to bother a neighbor she didn’t know very well on her off time, but she was that worried. She took Ashley in the next day and recalled overhearing Fox tell the doctor about the phone call in a tone of voice that made Melanie feel she had done something wrong and left her and Ashley embarrassed.

Fox denied she was upset about the call, saying she told the doctor only so she’d be aware of the conversation and would have that information for her examination.

Dr. Robin Altman, a general pediatrician in New York, testified that, based on medical records, she doesn’t believe care providers at Inlet Pediatrics took in symptoms and information from past visits to get a full picture when they saw Ashley. There wasn’t a recognition that there were patterns that were repeated and trends of serious symptoms, she said.

Without that review, they failed to “put 2 and 2 together,” she said.

She also said they weren’t as concerned about a significant weight loss — about 20 pounds from October 2006 to April 2007 — that was unexplained and unexpected.

Experts called in by the defense countered that opinion.

Dr. John Sperry, a Charleston pediatrician, said he saw no deviation from the standard of care and visits to Inlet Pediatrics were “actually very well documented” by care providers in medical records. It seemed to him high quality medicine was being practiced — the kind he would have been proud to have done himself, he said.

Without the benefit of hindsight, each visit by Ashley seemed different, with different symptoms that would have made it hard to link everything together.

Weight loss, which occurred incrementally between visits, wouldn’t have raised a red flag to him given that Ashley was an athlete.

Not until late March or April would it have become apparent to him that cancer should be looked into.

“Obviously it’s a terrible situation, but the practice did a good job,” he said.

“This is a gut-wrenching case ... for all of us,” Buyck said.

He had asked previously, more than once, for a mistrial after it was found two of the jurors were discussing the case over a lunch break, against the judge’s orders. Judge William Seals denied the request, stating it didn’t sound like the jurors had formed an opinion favoring either side in the case.

In his closing statement, Buyck asked the jury to put away their passions and sympathies, and think about whether Drosieko and others at the practice who treated Ashley acted reasonably and met the standard of care.

“It’s sad. This whole story is sad, but sympathy has no place in this courtroom,” he said.

Kevin Dean of Motley Rice law firm, an attorney for the Gaineses, agreed on that count, asking the jury to find in favor of his clients because it was right and just, and not out of sympathy.

He asked the jury to hold Drosieko and Inlet Pediatrics accountable, and also award damages to the family including lost wages and pain and suffering, which he suggested could be valued in excess of $1 million. The figure of $2.8 million was given during the trial for medical bills accrued during Ashley’s treatment.

Dean also wondered in his closing statement if he had adequately described Ashley for the jury. After days of focus on medical details and expert testimony, he said he questioned if he should have called more witnesses to help jurors get a better feeling for who Ashley was and how much she meant to those whose lives she touched.

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