Failure to Diagnose Skin Cancer/$5.8 Million Verdict in Wrongful Death Case

On Friday, November 14, 2008, after deliberating for approximately six hours following five days of testimony, a Rockville, Maryland, jury found Dr. Michael Albert, formerly with the dermatology practice of Norman A. Lockshin, M.D., P.A., liable for attorney Richard Semsker’s death from malignant melanoma and awarded damages to the patient’s family in the amount of $5.8 million. Melanoma is a cancer of the cells that produce melanin, the pigment that colors the skin. According to the American Cancer Society, about 62,000 Americans are diagnosed each year with melanoma and about 8,000 die from the disease.

The Semsker family was represented by Norfolk attorney, Jonathan L. Thornton, Esq., of the law firm Pierce & Thornton, PLC, and Patrick A. Malone, Esq., of Patrick Malone & Associates, in Washington, D.C.

“This was a tragic story about a good man and a responsible patient who was dropped through the cracks by his physicians. He could have been saved at any point during a six year period, but there was a total breakdown in communication between his physicians,” stated the Semskers’ attorney, Jonathan Thornton.

In September, 2004, Mr. Semsker was seen by Dr. Michael Albert for examination of painful boils on his upper back and to have a full body skin check performed. Dr. Albert’s examination documented two cysts and an atypical mole (technically known as a “nevus”) on Mr. Semsker’s upper back, all of which he recommended be removed, plus a mole on his lower back which Dr. Albert recommended for monitoring. Mr. Semsker returned to the dermatology office four times over the next two months in the fall of 2004 to have the other growths removed from his back. The untreated mole on the lower back turned into a melanoma at some point over the next two years.

When Mr. Semsker returned to the dermatology office in August, 2006, shortly after his wife noticed that the mole had turned color, it was excised by Dr. Ben Lockshin, the son of Dr. Norman Lockshin. Shortly afterward, it was found that the cancer had traveled to dozens of lymph nodes in Mr. Semsker’s groin and lower abdomen. Mr. Semsker underwent numerous treatments, including radiation, surgery and experimental chemotherapy with interleukin, but the cancer eventually traveled to his brain, and he died in October, 2007, at the age of 47, leaving a widow and two children.

The Semsker family filed a lawsuit against Dr. Lockshin, his practice, Dr. Albert, and Mr. Semsker’s primary care doctor. The primary doctor reached a confidential settlement with the family during the trial. Dr. Lockshin documented the same mole as 6 millimeters in diameter in 1998, at which time he wrote a letter to the primary doctor recommending it be removed. Then in 2004, when Dr. Albert saw the patient, he measured the lower back mole as 13mm in diameter, but did not realize the mole had doubled in size in the past six years, because Dr. Lockshin, in the meantime, had purged his files of old records. A copy of Dr. Lockshin’s 1998 letter was found in the file of the primary doctor, who also did not realize the mole had doubled in size because he never compared the two letters he received from the dermatology office about the mole.

The family alleged that Dr. Albert should have removed the lower back mole even if he did not know it had increased in size, because it was still of a worrisome size and the patient was already scheduled to have, and did have, another mole and two cysts removed from the back during that same Fall of 2004. Dr. Albert asserted that he had treated the patient appropriately, but he announced from the witness stand during trial that he had left the practice of medicine because of the lawsuit and was planning to become a high school biology teacher in Connecticut. He had trained at Harvard Medical School and the Massachusetts General Hospital in Boston.

The family called as an expert witness a prominent melanoma researcher at the University of Pittsburgh, Dr. John Kirkwood, who testified that Mr. Semsker would have had a 95 percent chance of a complete cure if the mole had been removed in the Fall of 2004, but that the subsequent two-year delay in removal allowed the cancer to travel from the skin into the bloodstream and become incurable. Dr. Kirkwood testified that nearly all the advances in patient survival of melanoma over the last fifty years have been due to early detection and removal of worrisome moles.

The family sued Dr. Lockshin personally because of his destruction of his old records, which would have informed Dr. Albert that the mole had doubled in size and was not a stable congenital mole as he assumed. The jury found that Dr. Lockshin was not liable because he had kept the records for the minimum five years required by Maryland law. The American Medical Association ethics code advises doctors to retain medical records as long as they may be of “reasonable value” to a patient. Dr. Lockshin testified that he was not aware of the AMA ethics code when he destroyed the records. While Dr. Norman Lockshin was not found personally liable, his professional corporation will have to pay the damages awarded on behalf of Dr. Michael Albert.

Mr. Semsker’s widow felt that the jury heard their family’s story, which was important to them because their hope is that other patients and families don’t experience the same fate. “If they had paid attention, he would be alive today. This was a patient who fell through the cracks of the medical system because of poor communication among his doctors,” stated co-counsel, Pat Malone.