One week into a Madison County medical malpractice trial, an Alton pediatrician and healthcare group seek a directed verdict arguing that the plaintiff failed to prove that his hearing loss was caused by the defendants’ negligence.
The trial began Feb. 13 in Circuit Judge Dennis Ruth’s courtroom.
Plaintiff Midland State Bank, as guardian of minor Jentzen Felt, is represented at trial by Charles Armbruster and Michael Blotevogel of Armbruster Dripps Winterscheidt & Blotevogel LLC in Maryville.
Defendants Steven Zenker, MD, and Alton MultiSpecialists LTD are represented by Jeffrey Glass and Madelyn Lamb of Hinshaw & Culbertson LLP in Belleville.
The suit alleges Felt had to undergo aggressive chemotherapy for a malignant germ cell tumor after Zenker alleged failed to timely refer Felt to another physician after months of a persistent fever and concerns about swelling in his left buttock.
On Feb. 15, Zenker and Alton MultiSpecialists filed a motion for directed verdict at the close of the plaintiff’s case or, in the alternative, for a directed verdict on causation regarding Felt’s hearing loss claim.
The defendants argue that the plaintiff failed to prove medical negligence or establish that Zenker’s standard of care deviated from the applicable standard of care, causing injury to Felt.
“Plaintiff has failed to produce any competent medical expert testimony to support its argument that the minor plaintiff’s hearing loss was caused by a negligent delay in diagnosis of germ cell tumor,” the motion states.
During trial, Midland State Bank introduced the testimony of Dr. David Wilson, Felt’s treating oncologist, and two expert witnesses, Dr. Carol Miller, a general pediatrician, and Dr. Charles Vinocur, a pediatric surgeon.
“Importantly, none of the physicians testified that the child’s hearing loss was caused by any alleged delay in diagnosis of the germ cell tumor.
“Plaintiff’s case is devoid of any medical expert testimony that the alleged delay in diagnosis caused the hearing loss,” the motion states.
The defendants state that Miller testified that management of the patient over a four to six month period allowed the tumor to grow, but she failed to opine that his hearing loss was the result of any diagnosis delay.
Wilson also did not testify that the delay in diagnosis caused Felt’s hearing loss, the motion states.
Wilson testified that Felt was diagnosed with a sacral yolk sac tumor, which was developmental in origin. He testified that the cancer needed to be treated or Felt would have died. Felt received the standard treatment for management of this type of tumor.
Wilson also testified that Felt likely would have needed four cycles of chemotherapy to cure his cancer and would have needed to receive Cisplatin, a chemotherapy agent, even if he had been diagnosed sooner.
“So it is likely that even if he had been diagnosed earlier, given that this was a sacral coccygeal tumor, that he would have received cisplatin-based chemotherapy upfront,” Wilson testified. “His exact treatment I can’t say with absolute certainty because it is a bit of a hypothetical situation.”
Wilson further testified that more likely than not, Felt would have sustained hearing loss regardless of the delay because Cisplatin has an expected side effect of hearing loss, the motion states.
Vinocur also testified that Felt received the standard treatment for his type of tumor, which would have been the same regardless of the time of diagnosis.
“Significantly, Dr. Vinocur does not offer the opinion within a reasonable degree of medical certainty that the alleged negligence of Dr. Zenker caused or contributed to cause the hearing loss Jentzen Felt sustained as a result of the cancer treatment,” the motion states.
“The evidence, when viewed in an aspect most favorable to the plaintiff, so overwhelmingly favors defendants, Steven Zenker, M.D. and Alton MultiSpecialists, Ltd., that no verdict in favor of plaintiff based on the evidence could stand,” it continues.
Midland State Bank filed a first amended complaint on Feb. 5 against Zenker and Alton MultiSpecialists. The two-count complaint alleges that shortly after birth, Felt came under the care of Zenker, a pediatrician working with Alton MultiSpecialists LTD. Felt was treated up to and including July 3, 2012.
Between December 2011 and July 3, 2012, Zenker examined Felt no fewer than 13 times, the suit states. Zenker was repeatedly informed that Felt was suffering from a persistent fever, which was confirmed during examinations.
Felt’s family allegedly asked Zenker to examine swelling on the child’s left buttock. Zenker examined the swelling during each visit, including abdominal palpations and cardio-pulmonary examinations.
Then on Aug. 3, 2012, Felt was taken to St. Louis Children’s Hospital due to the persistent fever and concerns about the swelling.
Shortly after admission, the swelling was diagnosed as a slow growing, malignant germ cell tumor.
As a result of the delay in diagnosis and treatment of the tumor, Felt was required to undergo aggressive chemotherapy.
Surgery could not be performed at the time because the tumor had grown so large that it became intertwined with major arteries and nerves.
As a result, Felt has suffered “substantial pain,” hearing loss, and an increased risk of future medical complications. He will also require continuous monitoring into the future, the suit states.
Midland State Bank alleges the defendants failed to acknowledge and document the growing lump, failed to acknowledge and document the need for a follow up visit after the child fell and reported low back pain, failed to observe the “large, obvious mass” forming above Felt’s buttocks and failed to refer Felt to another physician if Zenker felt he was unable to adequately diagnose and treat the mass.
Madison County Circuit Court case number 14-L-920