Defense expert testifies in sixth day of '03 medical malpractice retrial

By Amelia Flood | Jul 28, 2010


The defense in a retrial of a 2003 medical malpractice case over a woman's allegedly misdiagnosed skin cancer got under way in earnest Wednesday as an expert in family medical practice sparred with plaintiff's attorney Rex Carr.

Dr. Jerry Kruse of Quincy and Carr interrupted each other and argued at several points during Wednesday morning's testimony in a suit brought by plaintiff Douglas Storm against Dr. Patrick Zimmermann.

Douglas Storm is suing Zimmermann, a family practice doctor, for allegedly failing to diagnose his deceased wife's skin cancer nearly seven years ago.

While Kruse conceded that a mole Zimmerman removed from Maria Storm's back exhibited signs that could have indicated cancer, he defended Zimmermann's decision not to send it out for testing.

"Nothing in medicine is strictly black and white," Kruse said.

Carr's cross examination of Kruse, a faculty member in family medicine from the Southern Illinois University, continued following the lunch break.

Prior to noon, Carr's questioning drew a number of heated objections from defense counsel Ted Dennis.

Maria Storm initially had the mole removed by a Maryville doctor in 1998.

She saw Zimmermann a year later after the mole had grown back.

Zimmermann removed the mole. He did not send it to a laboratory for testing.

Maria Storm was diagnosed with malignant melanoma in 2003.
She died two years later from the disease at the age of 36.

Her husband claims that Zimmermann failed to meet the standard of care by failing to send the removed mole out for testing.

Zimmerman claims he treated Maria Storm properly.

The suit seeks damages of at least $50,000 per count and other relief.

Storm's case originally went to trial in January 2007, and the jury found for Zimmermann.

That verdict was thrown out, however, after it came to light that a juror lied about his role in two pending Madison County personal injury lawsuits.

Douglas Storm won the appeal and a new trial last year.

Witnesses in the plaintiff's case debated the process for testing the mole, whether the mole was the site of the melanoma's initial appearance and other aspects of the case.

One witness in the plaintiff's case called melanoma "an unforgiving disease," with a low to non-existent survival rate if left to spread.

Kruse testified that choosing whether to test removed tissue was a clinical judgment that would differ from doctor to doctor.

"It is very clear that a doctor can do more than one thing in a set of circumstances and still meet the standard of care," Kruse said.

He said he did not fault Zimmermann's treatment of Maria Storm.

He told jurors on direct examination by Dennis that a family practice doctor will treat a mole differently than a dermatologist, based on his or her experience and general patient types.

Kruse said it was not recommended or possible to test every mole or skin anomaly on a patient due to sheer volume. The statement contradicts testimony in the plaintiff's case that all moles should be tested in a lab in order to meet the standard of care.

"You would have to take off every mole on every person who walked in if you take that philosophy," Kruse said.

Kruse's cross examination by Carr grew heated with both men interrupting each other at points and raising their voices.

Carr pressed Kruse at length over whether a doctor should send a mole with possible signs of cancer for testing just to ensure that a patient have a "100 percent" diagnosis.

"Doctor, she's not entitled to a 100 percent certainty of melanoma?" Carr asked Kruse. "She's not entitled to that? Doctor, her life is at stake isn't it?"

Carr questioned Cruise about what constituted informed consent and whether Zimmermann and other physicians have to inform patients about the risks of all procedures.

Kruse testified that in some instances a doctor could make a decision without telling a patient of all of a procedure's risks and outcomes.

"So, you think there are some situations where the doctor can play Russian roulette with the revolver?" Carr asked, drawing an immediate objection from Dennis.

"This is just a soliloquy by Mr. Carr," Dennis told presiding judge, Madison County Circuit Judge Barbara Crowder.

Kruse previously testified in the suit's first trial.

While Crowder had already stepped in at points at Carr's urging to prompt Kruse's answers, Crowder asked both Carr and Kruse to stop speaking over Dennis and each other so the court reporter would be able to make the needed record in the case.

Jurors heard testimony earlier in the case that included Maria Storm's 2005 deposition, a pathologist's video deposition, the testimony of Douglas Storm and a video Thursday of Maria Storm's life.

The case opened with jury selection last Tuesday.

Michael Murphy represents Zimmermann's Collinsville practice.

Crowder presided at the case's first trial as well.

Another defendant in the case, Dr. James Dalla Riva, Maria Storm's gynecologist was voluntarily dropped from the case by the plaintiff.

The trial will continue Thursday and is expected to last until at least the end of the week.

The case is Madison case number 03-L-899.

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