Malpractice verdict against prostate cancer patient is affirmed

James Burek's family continued his malpractice case against Dr. Kimberly Hart, Dr. Arthur Frazier and Harper-Hutzel, Huron Valley Sinai and Karmanos Cancer Institute, after Burek died of severe radiation burns.  Burek was diagnosed with early-stage, localized prostate cancer in 2001, at age 49, and the Defendants recommended treatment with mixed-beam radiation therapy.  By "general agreement of the experts," Burek suffered "the most severe and extensive [radiation burns and injuries that the experts] had ever seen," including burns to organs outside the treatment area.  Burek died from complications of the radiation burns. 

Burek's family argued that the doctors were negligent in choosing an experimental form of treatment, that they failed to properly inform Burek of the investigational nature of the treatment chosen, and that he had been over-radiated by one or more of the two participating institutions.  The jury found in favor of the doctors and hospitals after a lengthy trial, and the family appealed.  Among other claims, the family argued that the trial court erred by refusing to admit into evidence testimony from a  Blue Cross doctor confirming the insurer's categorization of mixed-beam radiation therapy as experimental.  It also faulted the judge's refusal to admit a policy statement published by the American Society for Therapeutic Radiation and Oncology, documenting the lack of scientific acceptance of mixed-beam radiation therapy for early stage, localized prostate cancer.

The Court of Appeals upheld the verdict and rejected the family's basic argument that the extent of the burning suffered by Burek established negligence by one or more of the treaters.  The Court noted that Defendants' experts maintained that Burek's injuries resulted because he was more sensitive to radiation therapy, leaving open the conclusion that the burns did not result from negligence.  The higher court also rejected the family's arguments relating to the admission of Blue Cross and ASTRO policy evidence on the experimental nature of the therapy. 

With regard to Blue Cross, the court concluded that the family had not proved that the Blue Cross policy position was solely based on medical considerations.  With regard to the Society of Radiation Oncologists, the court ruled that any error in not allowing impeachment with this document was harmless because Plaintiff's experts had testified to the same opinion expressed in the policy letter.  The latter ruling seems a little disingenuous, but reflects the appellate court's substantial reluctance to disturb a jury verdict if the outcome appears to be consistent with "substantial justice." 

Ultimate conclusion:  a middle-aged man with localized, early stage cancer is killed by a heavy-duty treatment not recommended by the Society of specialists who treat this condition, but no liability attaches.