A boy who sued an Alton pediatrician alleging his germ cell tumor progressed due to delayed diagnosis seeks a new trial after a Madison County jury returned a defense verdict in February.
The trial ended Feb. 21 in Circuit Judge Dennis Ruth’s court after jurors entered a verdict in favor of Alton MultiSpecialists and Dr. Steven Zenker.
Plaintiff Midland State Bank, as guardian of Jentzen Felt, filed an amended motion for a new trial on May 2 through attorney Roy C. Dripps of Armbruster Dripps Winterscheidt & Blotevogel LLC in Maryville.
Dripps wrote that during closing arguments, Zenker’s counsel, Hinshaw & Culbertson in Belleville, suggested that the reason Felt’s parents did not tell Zenker about the bruising on his buttocks was because they wanted to avoid being the subject of a DCFS investigation for child abuse.
“And, you know, there is a known phenomenon that sometimes good parents, even very good parents, when their child has an injury that they know exactly how it happened and they know it’s kind of a bruise or whatever, they may not go to a doctor about it because if it’s an – if it’s something that could be questioned about how did this happen or maybe we ought to have DCFS look into this, you know, they say, ahh, it’s not worth going to a doctor and maybe – they’re afraid of that kind of thing.
“That is a phenomenon that’s known to occur even with good parents, and I’m not suggesting at all this was abuse. But this kind of repeated bruising on the buttock could be interpreted by a medical caregiver as some kind of excessive corporal punishment or something like that,” the defendant’s counsel said at trial.
Dripps argues that there was “no evidentiary basis for this accusation, nor could there have been, based on this court’s in limine rulings preventing defendants from blaming the parents.”
Dripps wrote that the comments warrant a new trial.
Dripps also argues that the defense verdict was against the weight of the evidence because Zenker admitted during cross examination that he failed to obtain Felt's emergency room records from Alton Memorial Hospital.
Further, Felt’s parents argue that had Zenker done a follow-up examination following the boy’s emergency room visit, then the defendant would have realized that Felt still had a lesion on his buttocks and required further evaluation.
Dripps also wrote that Felt’s parents “came across as credible, and their account is consistent with records from St. Louis Children’s Hospital entered within hours of his admission to that facility, whereas Dr. Zenker was defensive and evasive, and his testimony was inconsistent with his own records.
“[H]e claimed the parents must not have told him about Jentzen’s buttocks at any time because that was not mentioned in his records, but he then admitted they did tell him about the emergency room visit, even though that was not mentioned in his records,” the motion states.
As for Felt’s alleged hearing loss, Dripps wrote that while the jury did not reach the issue of whether delayed diagnosis caused his hearing loss or will increase the risk of late effects from chemotherapy, Zenker’s “deviation from the standard of care” caused Felt at a minimum to experience fever-like symptoms and pain longer than he would have otherwise.
Ruth scheduled a motion hearing for June 1 at 9 a.m.
According to Felt’s first amended complaint, he came under the care of Zenker, a pediatrician working with Alton MultiSpecialists, and 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 also allegedly asked Zenker to examine swelling on the child’s left buttock.
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.
Surgery could not be performed because the tumor had grown so large that it became intertwined with major arteries and nerves. Felt had to undergo aggressive chemotherapy to treat the tumor.
Felt allegedly suffered hearing loss as a result of the chemotherapy treatments.
During trial, the defendants sought a directed verdict, arguing that the plaintiff failed to prove medical negligence or establish that Zenker’s standard of care deviated from the applicable standard of care.
The defendants also argued that the plaintiff failed to provide evidence or medical expert testimony supporting its argument that the child's hearing loss was caused by a negligent delay in diagnosis.
Madison County Circuit Court case number 14-L-920