New Trial Begins In Alleged Failure To Diagnose Cancer

April 12, 1992|By Darren M. Allen | Darren M. Allen,Staff writer

WESTMINSTER — A Ridge Road man is again suing the radiologist he claims misdiagnosed a fatal abdominal tumor that caused his wife's death.

McCay Vernon first sued Washington Heights Medical Center's Dr. Niel J. Borelli and Carroll Imaging Associates in December 1989, a case in which a Carroll Circuit Court jury in May 1990 found in favor of the doctor.

However, because two unfair instructions were given to the jury before its deliberations, the Maryland Court of Special Appeals granted Vernon a new trial.

The second trial starts tomorrow.

Edith Vernon, then 63, complained to her family doctor of severe stomach pain, bleeding and cramping in October 1986. Her physician referred her to Borelli, a board-certified radiologist, who performed a series of tests, including X-rays.

As a result of those tests -- an upper gastrointestinal series and observations of her throat and stomach -- Borelli concluded that nothing was abnormal, court records show.

That observation, the original suit says, was "tragic."

Two years later, Edith Vernon complained of the same symptoms, as well as 10-pound weight loss, loss of appetite and further bleeding.

A second battery of similar tests revealed a malignant tumor that extended along the walls of her stomach.

As a result of that observation, the court record shows, Edith Vernon underwent major surgery in August 1988 to have her stomach, spleen and pancreas removed. However, the tumor was too large to be completely removed.

At that point, the suit said, "Mrs. Vernon's fate was sealed."

She spent the next three months in "tortuous pain" and died in October.

The first trial, heard in Carroll Circuit Court, lasted about two weeks. During the trial, the jury was told by expert witnesses that doctors may sometimes misdiagnose a patient, but that that alone does not mean the doctor is negligent.

McCay Vernon is suing for unspecific expenses that would "adequately and fairly compensate" him and his wife's estate for her death.

"Mrs. Vernon suffered substantial physical pain and mental anguish during the many tests, procedures, and treatment which she underwent before her death," the original suit said.

At the end of the trial, the jury was read a list of instructions, in which the judgetells the 12-member panel specific points of law relating to the case they are to decide.

Two of those instructions were viewed as unfair last April by the Court of Special Appeals because they "were in error, and that error cannot be dismissed as harmless."

Taken together, the two instructions said, "(Borelli) need only find two experts to disagree and thereby thwart (Vernon's) ability to recover," the state's second-highest court said.

Jury selection in the case willbegin tomorrow at 10 a.m. in the Old Courthouse. Howard County Circuit Judge Cornelius F. Sybert will preside.

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