Pfaff vs. Dianon Systems and Barbara A. Russo

Supplement to The Lawyers Journal

Remarks:

In November of 2001, Plaintiff Earl Pfaff’s physician felt a nodule on Mr. Pfaff’s prostate gland. Mr. Pfaff was referred to Dr. Ronald Cercone, a urologist, who recommended an ultrasound guided biopsy. Following that procedure, six pieces of prostate tissue were sent to Defendant Dianon Systems for evaluation. The tissues were processed by a Dianon histologist and then reviewed by Defendant Barbara Russo, a pathologist, who diagnosed Mr. Pfaff as suffering from a very aggressive form of prostate cancer. After the diagnosis was reported to Dr. Cercone, Mr. Pfaff decided to undergo a radical prostatectomy, which Dr. Cercone performed on February 2, 2002. The prostate was then sent to the hospital’s pathology department which reported that Mr. Pfaff’s prostate was cancer-free. The surgery caused erectile dysfunction and incontinence.

Dr. Cercone contacted Dianon, which then conducted its own in-house investigation and learned that the histologist had switched Mr. Pfaff’s tissue with that of another patient during processing. A subsequent review of Mr. Pfaff’s actual tissue revealed that Mr. Pfaff’s biopsy tissues were benign.

At trial, Plaintiffs presented expert testimony that the histologist had breached both Dianon’s procedures and the applicable standard of care when she switched Mr. Pfaff’s tissue with that of another patient. Plaintiffs also presented expert testimony that Dr. Russo also violated the standard of care when she failed to compare the tissue as seen under a microscope with the gross written description of the tissue, a comparison that would have revealed the switch in tissue. Defendant argued that while the lab technician did not follow its procedures, those procedures exceeded industry standards.

The jury found for the Plaintiffs, finding Dr. Russo five percent negligent and Dianon ninety-five percent negligent. The jury awarded Mr. Pfaff damages of $4.5 million for