ury awards $800,000 to terminal cancer patient after missed diagnosis
by Karen Ali
January 24, 2003
DANBURY - A terminally ill woman whose doctor failed to diagnose her rare but curable liver cancer won $800,000 Thursday as a result of a Superior Court jury verdict. The 66-year-old woman, Ann Wendt, who doctors say has only six months to live, sued her physician, Dr. Gerald Franklin, a Danbury internist and gastroenterologist. Wendt, who is formerly of Brookfield, claims Franklin was negligent when he failed to diagnose her liver cancer for years while she was under his care.
A jury panel of six men agreed Thursday morning after four hours of deliberations.
When Wendt, a former administrative assistant to a vice president at Grolier, and her husband, David, retired in the late 1990s, they moved to Cape Coral, Fla., where they intended to relax and enjoy their leisure time.
"They're outdoor people. They intended to fish and boat and lie in the sun," Wendt's lawyer, Carey Reilly, said.
"'This is our time to have fun. We're not having any fun,'" Reilly said, quoting her client. The Wendts have a son who lives in New Milford and a daughter in Maine.
Franklin's lawyer, Stamford-based Dan Ryan, said the doctor is very disappointed and is considering an appeal. "He's been in practice for 25 years."
He added that Franklin always had a good relationship with his patient and is very sympathetic to her plight. "He likes her a lot. I like her a lot," Ryan said.
Yet, he maintains Franklin could not have handled her care any better than he did.
Reilly said that Wendt's insurance covered most of her medical bills, but she sued for non-economic damages, such as pain and suffering. She put her client on the stand briefly because she "knew the jury would want to hear from her."
Her husband, David, testified about many of the details because he was able to communicate more effectively and recall details more easily than his wife, who was also in a great deal of pain.
Reilly, of Bridgeport, said her client is now "bedridden" and has contemplated suicide. The tumor is inoperable and the pain is tremendous, she said.
"Except for the trial, she is usually in bed 20 hours a day. Her husband has to get her up to take a shower. She's been living on these pain meds since 1998 so she can't drive. That's one of the things that was a huge thing for her. She can't drive. She can't go anywhere. Her husband takes her everywhere," Reilly said.
When the verdict was announced, Reilly said she saw her smile for the first time. "I had never seen her smile."
"Having a jury coming back saying 'yes the defendant is wrong,'" was gratifying to her client, Reilly said. "I never heard a word from her about the money."
Reilly said that the plaintiff's medical expert testified that had Wendt been diagnosed with liver cancer at any point up until the end of 1995, she would have beaten the cancer.
The saga began in 1992 when a doctor sent Wendt to Franklin to deal with a liver mass found during a CT scan.
At that point, because of the location and size of the tumor, doctors were unable to access it to take a biopsy.
"We never faulted them for making the decision it was inaccessible to biopsy," Reilly said.
Three months later, in November, another CT scan was taken and the mass did not appear to change, so Franklin decided that more likely than not the mass was benign, Reilly said.
The next scan done was in February 1994, and the scan showed that the mass was gone. But Reilly contends that if the doctor had done the same type of test that was done in 1992, the mass would likely have shown up.
"In '94, he said, 'great, it's gone' and he never did anything until '96 until it was too late," Reilly said.
In 1996, she went to Franklin again and he ordered a CT scan because he thought she had diverticulitis, a gastrointestinal disease.
That's when a mass was again discovered, but Franklin and the radiologist still did not suspect cancer. It wasn't until only a few months after moving to Florida in 1997, when she and her husband were on vacation in Italy, that Wendt became sick. A CT scan in Italy indicated that the tumor had grown and the growth was likely due to a cancerous tumor.
Ryan said the doctor "felt very strongly he took care of this woman appropriately." He pointed out that in 1994 a radiologist said the lesion in her liver had gone away, so Franklin didn't pursue it.
As a result of this jury decision, Franklin is probably going to "refer everyone to surgeons everytime" to the point that he will be driving the surgeons crazy, Ryan said.
"Then someone may die in surgery,'" Ryan said cynically, adding that in this case there was no evidence that a surgeon would have even agreed to operate on Wendt.
Meanwhile, one of Franklin's concerns is that this verdict may make it difficult to get new malpractice insurance when his current plan runs out at the end of this year, Ryan said.
Contact Karen Ali at email@example.com or at (203) 731-3341.