David Zevan

Kevin David


Madison County Circuit Judge William Mudge set a March 28 case management conference in an O'Fallon man's medical malpractice lawsuit against a Madison County doctor.

On Jan. 27 Mudge heard a motion by Dr. William Drake to dismiss the case against him.

Mudge set the March 23 hearing based on the defendant's motion to transfer the case. Drake claims that Madison County is an inconvenient venue to try the case.

Drake, St. Joseph's Hospital in Breese and Hospital Sisters Health System, are being sued by Paul Earnhart and his wife Patricia who say Drake misdiagnosed Earnhart's condition and allowed cancer to spread through his body.

According to the lawsuit, Earnhart had a lump on the side of his neck that was removed by Dr. Jeffrey Fierstein in July 2009. The sample tissue was sent to Drake for analysis. Earnhart says the physician diagnosed the lump as an infected cyst.

Earnhardt says the lump returned, and he was told it was cancer that had spread to his tongue and lymph nodes. Earnhart says he has since undergone cancer treatment.

The plaintiffs responded Drake's motion to dismiss the case saying his initial report had no mention of malignancy.

"On Nov. 3, 2010, over a year later, Drake undertook re-examination of the pathology slides and at that time amended his report, disclosing the presence of epidermoid carcinoma," states the Earnhardts response to Drake's motion to dismiss. "Neither Defendant Drake nor anyone from St. Joseph's Hospital ever contacted the plaintiffs in order to advise him of the amended report. This was the first occasion Paul had reason to know that the initial pathology findings were erroneous had he been so advised."

The Earnharts are suing the doctor and hospital for negligence and loss of consortium for an allegedly blatant misdiagnosis. They are asking for more than $50,000.

Attorneys Kevin J. Davidson, David M. Zevan and Jean L. Maquire of St. Louis represent the Earnharts. They ask for a jury trial.

Michael Nester of Belleville represents St. Joseph's Hospital of the Hospital Sisters of the Third Order of St. Francis and Hospital Sisters Health System.

James Neville of Neville, Richards & Wuller in Belleville represents Drake.

Madison County Circuit Court Case No. 11-L-661

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