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Veteran Dies of Stage 4 Cancer After Physician Refuses Colonoscopy

A physician at a VA outpatient clinic treated a veteran who had presented with symptoms of colon cancer. The remiss doctor diagnosed the vet with hemorrhoids and sent him on his way instead of doing further testing. The patient, a man in his 40s, was experiencing rectal bleeding, abdominal pain, and pain when defecating — all severe symptoms that should have prompted a thorough examination. As the patient’s symptoms progressed over the next two months, he requested a colonoscopy referral from his VA doctor. The physician denied his request. The veteran lived with the agonizing symptoms for eight additional months before finally seeing a gastroenterologist. Unfortunately, by then, he was diagnosed with stage-four rectal cancer and soon after succumbed to the disease.

The veteran had a series of interactions with the neglectful physician, including two office visits, a phone call, and communication through an online messaging system. The patient was receiving treatment for hemorrhoids but did not get the relief he sought for the pain he was experiencing. All the while, his rectal tumor grew. Nearly a year after his initial doctor’s appointment and after receiving the devastating cancer diagnosis, he underwent chemotherapy. However, the tumor had broken through the lining of his colon, and cancer cells had spread to his lungs and liver. The chemotherapy wouldn’t have saved or prolonged the man’s life.

Dan Luginbill and Julia Flumian of McGowan, Hood, Felder & Phillips, LLC, who specialize in medical malpractice and personal injury cases, were referred to the case by another attorney. The victim’s initial counsel filed the claim, gathered evidence, and received a deposition from the veteran before his death. When Dan and Julia took over the case, they hired medical experts, including an oncologist, an internist, and a primary care physician, to better comprehend the standard of care and determine causation.

Dan and Julia learned from their expert oncologist that patients must be screened for active bleeding if presented with blood in their stool. If an exam came back inconclusive, the next step was to refer the patient for a colonoscopy. Dan and Julia’s investigation of their client’s medical records revealed that the physician had not examined the patient until his second visit when he was diagnosed with hemorrhoids. The attorneys also learned that colorectal cancer is highly treatable and survivable if caught early. However, by the time the medical staff found the cancer, their client's chances of survival were less than 10%.

The duo faced challenges with the case from the outset. The Defense argued that even if the physician performed a colonoscopy, the patient's tumor was already so advanced it wouldn't have made any difference in his outcome. In the initial mediation, the Defense refused the settlement amounts put forth by the Plaintiff. Instead, they hoped the patient’s family would tire of fighting the case and accept a smaller amount.

Dan and Julia knew they needed to prove that the physician was negligent in failing to order a colonoscopy, and that was the reason for their client’s untimely death. The attorneys also realized they would need DK Global for a visual demonstrative. They wanted DK Global to use information from medical records and the patient’s deposition to assemble a timeline. This sequence of events would show how the cancer had progressed and how the physician had multiple opportunities to slow or stop its progression.

DK Global produced an animation that opened with a timeline listing each date the patient and the doctor had contact, including the office visits, the phone call, and electronic messages. The visual showed each date listed in green, yellow, or red. Like traffic lights, the dates in green indicated that there was still time for treatment; the dates in yellow suggested that the cancer was progressing and that the treating physician should have taken caution; the dates in red indicated that the cancer had spread to a point where the patient’s life was in grave danger. The video then showed an animation of the Plaintiff’s body, highlighting the progression and size of the tumor as it increased in size, ultimately ending his life.

After sharing the visuals with the judge and opposition, Dan and Julia stated their intention: they would have their expert explain the Defendant’s negligence by presenting the animation to potential jurors. The Defense scheduled a mediation eight days before trial, resulting in a settlement four times higher than the initial offer.

Dan Luginbill is a personal injury attorney at McGowan, Hood, Felder, and Phillips, LLC, and has been practicing since 2000. He specializes in personal injury, medical malpractice, criminal defense, vehicle accidents, police excessive force, and family law. Dan is a member of the Board of Governors for the South Carolina Association of Justice and is a member of the American Association of Justice and the American Bar Association. Dan also proudly served in the Navy in the submarine fleet.

Julia Marie Flumian of McGowan, Hood, Felder & Phillips, LLC began practicing law in 2008. She specializes in several areas of law, including personal injury, medical malpractice, and estate and trust litigation. Julia is a South Carolina Association for Justice and a Charleston County Bar member. She is passionate about obtaining justice for her clients.

"What's really important about using visuals is, if they see it and believe it first, it's very, very hard for the defense to get that out of their minds. Once they see it, and it makes sense to them, 9 times out of 10, the case is over."
Daniel W. Luginbill - McGowan, Hood, Felder & Phillips, LLC
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