Louisiana Record

Tuesday, March 31, 2020

Court upholds dismissal of malpractice claim against Louisiana dermatology lab

By Amanda Thomas | Mar 18, 2018

Medical malpractice 02

LAKE CHARLES – A Louisiana appeals court has upheld the dismissal of a malpractice claim against a dermatology lab accused of missing a patient’s cancer diagnosis. 

The Third Circuit Court of Appeal’s decision affirms a lower court's dismissal of Ellen McDonald’s claim that a dermato-pathologist at Skin Pathology Associates Inc. missed diagnosing suspicious moles on her skin as melanoma. 

Court records show that the moles were removed by McDonald’s dermatologist and tested by Skin Pathology Associates in July 2010, but the original report on those samples by dermato-pathologist, Dr. James Elder, concluded there was no indication of melanoma. Over the course of two years, the moles reappeared and McDonald returned to her dermatologist to get another test. After testing those samples, another dermato-pathologist, Dr. Michael K. Jacobs, determined they indicated melanoma. The old samples were then re-evaluated by Jacobs who found they also indicated melanoma. 

McDonald filed a medical malpractice suit against the lab, claiming a misdiagnosis of melanoma. She submitted affidavits from her dermatologist and his physician’s assistant who stated Elder told them his original diagnosis was in error. But Elder testified in a deposition that he never talked about the diagnosis with McDonald’s dermatologist or the physician’s assistant. 

McDonald also submitted statements from experts in the field of oncology that show she “would have had a better result had her melanoma been properly diagnosed in 2010.” But none of those experts had a specialty in dermato-pathology. When asked for the names of any expert witnesses who could offer an opinion on the reading of the 2010 slides, she responded she hadn’t chosen any experts at the time. 

Over a year after her response, Skin Pathology Associates moved for summary judgment, supporting its motion with an affidavit from dermato-pathologist Dr. Clay J. Cockerell who reviewed the 2010 slides. In the affidavit, Cockerell agreed with the original diagnosis made by Elder, saying he “saw no evidence of melanoma and would not have recommended excision.” He also stated that Elder and Skin Pathology Associates met the standard of care in their treatment and care of McDonald. 

After the hearing, McDonald was given 30 days to find a dermato-pathologist who would testify on her behalf. Failure to find an expert witness would result in her case being dismissed. McDonald argued that she didn’t believe retaining the services of a dermato-pathologist was necessary, but the trial court ultimately granted Skin Pathology Associate’s motion for summary judgment and dismissed her claims. 

The appeal court upheld the trial court’s decision, noting Cockerell’s statement that Elder’s readings of the 2010 samples didn’t fall below the standard of care and that his reading would have been the same. The court also cited McDonald’s failure to retain an expert witness and demonstrate that Elder breached the standard of care when he found no indication of melanoma in 2010.  

“Without such proof Plaintiff’s case fails as a matter of law,” the opinion reads. 

The court also noted that the only evidence McDonald shows to rebut the lab’s expert testimony is Jacob’s re-reading of the 2010 samples that revealed melanoma and the fact that Elder’s reading is now viewed as erroneous.

“A physician or dentist is not obligated to always be correct in making a diagnosis,” the opinion reads. “A diagnosis is an act of professional judgment and, in case of a misdiagnosis, malpractice exists only if it results from a failure by a physician or dentist to exercise the standard for degree of care.”


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Louisiana Third Circuit Court of Appeal