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Kordas v. Sugarbaker

March 11, 2010


Appeal from the Superior Court of the District of Columbia (CA-5583-05) (Hon. Jennifer Anderson, Trial Judge),

The opinion of the court was delivered by: Ruiz, Associate Judge

Argued February 16, 2010

Before RUIZ, GLICKMAN, and THOMPSON, Associate Judges.

Appellants, Frank and Marilyn Kordas, sued Dr. Paul H. Sugarbaker for medical malpractice, alleging that he breached the national standard of care when he performed a "second look" surgery on Mr. Kordas. On appeal, appellants argue that the trial court erred in (1) giving the "bad result" instruction and (2) admitting the expert witnesses on behalf of Dr. Sugarbaker because their testimony did not address the national standard of care. We disagree with both contentions and affirm.


In July of 2002, Mr. Kordas had a colonoscopy, which was negative, but a CT Scan showed fluid collected and a mass attached to the dome of his bladder. On September 3, 2002, Mr. Kordas underwent a procedure in Phoenix, Arizona, to remove the mass, which was diagnosed as appendiceal carcinoma, a rare form of cancer. In the course of the operation, a tumor wall was breached and mucinous cancerous material was released into the surrounding area in the abdominal cavity. An oncologist in Arizona recommended extensive chemotherapy and radiation treatments.

Appellants sought assistance to see what else could be done to assure the long-term survival of Mr. Kordas. On December 16, 2002, appellants had a consultation with Dr. Sugarbaker in Washington, D.C. During the consultation, Dr. Sugarbaker recommended "a second look surgery." Dr. Sugarbaker explained that "[w]e would open the abdomen to a wide incision. We would perform a[n] . . . excision of any areas where there is [a] visible tumor within the abdomen and it is possible that a repeat excision of a portion of the bladder would be necessary. It is also possible that a re-excision of the colon may be necessary." Dr. Sugarbaker noted that "[i]f indeed this is a negative abdominal exploration the patient would be out of the hospital within about seven days and we would think that his prognosis is good."

Mr. Kordas returned to Washington and had the second look surgery with Dr. Sugarbaker on April 1, 2003. During a conversation that took place with Mrs. Kordas while the surgical procedure was ongoing, Dr. Sugarbaker reported what he had found:

He's got millions of nodules, all very, very tiny. Millions. They are just all over the place but they are, as is usually the case, greatest quantity on the colon . . .

Based on Dr. Sugarbaker's observations of what he believed to be evidence of widespread cancerous cells in the abdominal cavity, he proceeded to remove the entire colon, mesentery, omentum, and other tissue in the affected area. The abdominal cavity was then bathed with chemical ingredients. A few days after the procedure, appellants were advised that numerous tissue samples that had been sent to the laboratory revealed that cancer was not present. It was later determined that the "cancer" was a fungus, which is indigenous to the Phoenix, Arizona desert area where Mr. Kordas lived.

At the trial, appellants offered the expert testimony of Paul Goldfarb, M.D., who was qualified by the court as an expert in general surgery and surgical oncology. Dr. Goldfarb testified that the national standard of care required Dr. Sugarbaker to suspend the surgery and conduct a frozen section biopsy to determine what the nodules were before removing important organs from Dr. Kordas's body. Dr. Leff, who had performed the initial surgery in Phoenix and is a general surgeon, testified to the same effect.

Dr. Sugarbaker offered expert testimony by Dr. Samuel Corlin Bieligk and Dr. Robert Sticca. The defense experts testified that the standard of care required of a physician treating a patient who has been diagnosed with appendiceal cancer does not call for a frozen section biopsy to be performed during a "second look" operation. Dr. Bieligk explained that when dealing with rare mucinous cancers like Mr. Kordas had, the ability to do [a] frozen section on all of these nodules is very limited and, in fact, unreliable because some, but not all, of the tissues might be cancerous. The problem is which nodules do you take. . . . The risk is missing cancer. That's the real risk because the problem is if you leave cancer there we know from experience that that will recur.

The jury returned a verdict for Dr. Sugarbaker after finding that plaintiffs had not proven by a preponderance of the evidence that Dr. Sugarbaker had departed from the national standard of care by "failing to confirm the presence of cancer before proceeding" or ...

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