A New Brunswick woman has won a negligence lawsuit against a Newfoundland hospital and two pathologists after being told a mole she had removed was benign, only to find out six years later she had life-threatening skin cancer.
Pamela Lodge, of Hampton, had a mole removed in 1995 at Western Memorial Regional Hospital in Corner Brook, N.L., where she was living at the time.
She had had the mole on her buttocks since she was born, but it had started itching and occasionally bled, according to the New Brunswick Court of Queen's Bench documents.
The mole was removed and Lodge was told it had been harmless, based on a pathology report by Dr. Abdul Rashid.
Eight months later, the scar was tender and Lodge noticed some discoloration, according to the documents.
'[Dr. Abdul Rashid] owed a duty to Ms. Lodge to conduct further investigation, obtain a second opinion, or send the slide out for a consult from a dermatopathologist.' —Justice William Grant, New Brunswick Court of Queen's Bench
She went back to her doctor and had more tissue removed in 1996. Once again she was told there was nothing to worry about and there was no need for further treatment, based this time on a pathology report by Dr. Paul Neil, who was also employed at Western Memorial Regional Hospital.
Lodge moved to Fredericton in 2000 and the following year told her new family doctor that the scar had turned dark blue.
She had another surgery at the Dr. Everett Chalmers Hospital in Fredericton and was diagnosed with malignant melanoma, a life-threatening form of skin cancer.
Her plastic surgeon said the cancer had already spread and her prognosis wasn't good.
A Fredericton-based oncologist told her most patients in her situation face a life expectancy of one to two years, court documents show.
Lodge had a wider excision of the area to ensure all of the diseased tissue was gone and also had some lymph nodes removed.
She responded well to treatment, which lasted more than a year — and hasn't had any recurrence, according to the documents.
She sued Western Memorial Regional Hospital and the two pathologists, Rashid and Neil, alleging negligence in her diagnosis and treatment.
Negligence alleged against doctors
Justice William Grant, of the New Brunswick Court of Queen's Bench in Saint John, recently ruled in Lodge's favour after a trial that stretched between July and October of 2009.
Rashid, who was a salaried employee at Western Memorial from 1993 to 1997, testified during the trial that he was "100 per cent sure" of his 1995 diagnosis, "within a reasonable degree of medical certainty," according to court documents.
He said such lesions are difficult to diagnose but if he wasn't sure, he would have done further investigation, or requested a second opinion.
If he had been even "one-half of one per cent uncertain" he would have done further investigation, or requested a second opinion from a colleague, he told the court.
But the judge wasn't convinced.
"Based on Dr. Rashid's own evidence, I find that the level of uncertainty of his diagnosis was well in excess of one per cent in this case and … I find that because of that uncertainty he owed a duty to Ms. Lodge to conduct further investigation, obtain a second opinion, or send the slide out for a consult from a dermatopathologist," Grant stated in his written decision.
"By failing to do any of those, I find that Dr. Rashid did not use a reasonable degree of skill and care to ensure that his diagnosis was correct and that he did not meet the standard of care which he owed to Ms. Lodge."
"I further find that not only was Dr. Rashid wrong in his conclusion about the margins of the excision, but that his manner of communicating this conclusion in his report was ambiguous, that it does not meet the standard of care that he owed to Ms. Lodge and that it contributed to her loss."
Pathologists handle hundreds of cases a year
Neil, who has been practising at Western Memorial Regional Hospital since 1986 and has been director of pathology there since 1998, testified he was one of four pathologists at the hospital at the time.
They handled an average of 8,500 to 9,000 cases per year, he said.
Neil said the standard procedure was that if one of them had a difficult case, they asked a colleague for his or her opinion. If neither of them was certain, they would ask another pathologist and if they still couldn't reach a consensus, they would refer the case outside the hospital for a consultation.
Neil, who wrote the 1996 pathology report, said he didn't review the 1995 slide to decide whether or not he agreed with Rashid's initial diagnosis, nor did he make his own diagnosis of the 1995 lesion. He had no reason to question Rashid's diagnosis, he said.
"This is not a case where Dr. Neil could not have known how to avoid this pitfall by the example of others or one where no other practical precautions could have been taken," the judge wrote in his 66-page decision.
"Rather, in my view it is a practice, apparently quite common though not universal, that is fraught with obvious risks and thus open to censure by the court where, as here, it results in the patient sustaining injury or loss," Grant wrote.
"By failing to do his own diagnosis of the 1995 biopsy Dr. Neil effectively condemned his own diagnosis of the 1996 biopsy. By so doing, he failed to exercise a reasonable degree of skill and care in reaching his diagnosis and he breached the standard of care which he owed to Ms. Lodge in the circumstances."
Hospital 'vicariously liable'
Grant also found Western Memorial Regional Hospital "vicariously liable" for the negligence of doctors Rashid and Neil.
He dismissed the case against Lodge's family doctor, however.
Lodge is seeking damages for pain and suffering, loss of amenities, loss of a normal life expectancy, loss of future income or diminished earning capacity and future loss of valuable services and the cost of care, plus interest and costs.
Damages will be decided at a future hearing.