Fact Pattern: Melanoma

A 47-year-old female presents to a dermatologist complaining of a “discolored” mole on her back in November. The dermatologist says it’s nothing serious but decides to freeze it off with liquid nitrogen in the office. After noticing the “discoloration” returning over the next few months, the patient decides to have it checked. She presents to an urgent care center, where the physician immediately refers her to a dermatologist, who does a biopsy. The report comes back as melanoma with penetration into the dermis, Stage IIA (T2b, N0, M0).

Who should review it?

Some attorneys think they should get a dermatologist first, the worry about everything else (perhaps a (medical) oncologist) later. In these situations, though, the causation/damages issues, including “Wouldearlier treatment have changed the outcome?” typically predominate and are more likely to include a dispositive issue. As a result, it’s usually better to have causation/damages reviewed first. Frankly, if you’re going to get a “no,” you really want to get it on the first review–not on the second, third, etc. So, again, who should review it? Well, how about a surgical oncologist–one who handles melanomas?

So, what’s a surgical oncologist?

It’s a general surgeon who’s specially trained in cancer surgery. Wait . . don’t all general surgeons operate on cancer? Well, yes, technically, but there’s more to it than that. For example, if there’s an ascending colon cancer, yes, they would remove it. So aren’t all general surgeons surgical oncologists? No. A surgical oncologist will handle colon cancers but also breast cancers, and peripheral cancers (like on the legs or arms) and even endocrine tumors. They may or may not handle thyroid, depending on their training. Surgical oncologists have had specialized oncologic training so a surgical oncologist is sometimes best for the initial review--followed by a dermatologist to opine about standard of care (of the dermatologist).

Are there any other choices for causation?

Well, how about a Mohs surgeon? Alright, what’s a Mohs surgeon? That’s a dermatologist by general training who then decides to do Mohs training which is the methodical removal of tumors of the skin a bit at a time, with the Mohs surgeon looking at each ‘slice’ on site under a microscope to assess whether there are clear margins on all facets and continuing to remove slices until all margins are clear. So, can a Mohs handle both duty/breach as well as causation/damages? That depends.

Is a Mohs better than a surgical oncologist for causation?

Not necessarily. In fact, the surgical oncologist’s oncologic background may make him/her a more credible witness about cancer surgery than a Mohs.

What about a plastic surgeon for causation?

Yes, they do these removals. If the damages are “Was the surgery more disfiguring due to the delay?” then a plastic surgeon may be a good choice for causation/damages. If the question is or also includes “Did the cancer staging/prognosis get worse due to the delay?” then aplastic surgeon may have some shortfalls. Each choice weighs more toward plastics or surgical oncology, respectively. Also, plastic surgeons are pretty expensive if it comes to trial so there may be a less expensive option (or two).

Does the law in the state require the expert’s practice to ‘match’ the defendant’s?

If so, a Mohs surgeon may not be compliant and a separate (general) dermatologist will be required. That said, a Mohs may be the better choice initially because such an expert could definitively answer the causation/damages questions about the effect of the delay and also give insight or even a definitive answer on duty/breach.

What if the law requires an affidavit by an expert in a matching field and the statute of limitations is nearly up?

In that situation, one may have to forego having the likely (for the sake of this hypothetical) dispositive causation/damages issues reviewed due to the need for an immediate affidavit. Even the choice of a Mohs surgeon may have to be abandoned due to the need for an expert in a ‘matching’ field.

What if the delay in diagnosis didn’t result in the cancer progressing past Stage 0 (in situ)?

In that case, there would likely be no provable damages, but there’s still an open question about the delay causing an aesthetically more damaging surgery.

What if the situation involved a delay between Stage II and Stage IV melanoma, meaning the difference in survival was between less than 50% (Stage III) and much, much less than 50%?

The critical parts of this question involve whether the state allows recovery for loss of chance and whether it allows recovery at all if the patient never had a time at which a deviation would have meant, to the requisite level of certitude, that s/he would have survived.

If there’s an issue with ‘what was really on the slides,’ is a pathologist necessary?

Yes and no . . . and maybe. It depends on whether the pathology issue is beyond what the other expert(s) can testify about, i.e., is it esoteric or more within the general knowledge of one of the other experts. Even then, if there’s an esoteric issue, a dermatopathologist would be best.

Is a dermatopathologist necessary or could a regular pathologist suffice?

That depends on the scope of the practice of the pathologist. It also depends on whether opposing counsel gets (or could get) a dermatopathologist. Most critically, it also depends on whether the original diagnosis was made by a dermatopathologist. Walking into court with a ‘mere’ pathologist, may be a fatal mistake or it may be a fine choice.