Penn Med doctor to pay $10M in suit

A Philadelphia jury ruled on Monday that Penn Medicine neurologist Leo McCluskey owes $9.65 million in damages to Eric Davenport, a patient whom McCluskey misdiagnosed with Amyotrophic Lateral Sclerosis — or Lou Gehrig’s Disease — eight years ago.

“We are disappointed with the verdict and we will appeal,” Penn Medicine spokeswoman Susan Phillips said.

Davenport filed a civil lawsuit against McCluskey, the Hospital of the University of Pennsylvania, the Penn Comprehensive Neuroscience Center and other parties on Dec. 23, 2008. However, the court dismissed all parties but McCluskey as defendants.

Thomas Savon, McCluskey’s attorney, could not be reached for comment.

According to the plaintiff’s lawyer Matthew Casey, Davenport first visited McCluskey in 2003 at the request of his local physician in New Jersey.

McCluskey — also a Neurology professor — gave Davenport a “certain diagnosis” of ALS, Casey said. Davenport testified that he clearly remembered McCluskey giving him the diagnosis and telling him he had between 18 months and three years to live.

The diagnosis, however, was found to be incorrect. Davenport actually suffered from spinal cord compression — pressure exerted on the spinal cord.

Throughout the two-week trial, Davenport maintained that he lost his ability to walk three years later because his condition went untreated due to the incorrect diagnosis.

“The underlying real tragedy of those years when he thought he had this death sentence was that the opportunity to treat this spinal cord compression … slipped away during those years,” Casey said.

A combination of monetary and non-monetary losses since the initial diagnosis — and projected over Davenport’s expected lifespan — was used to determine the verdict.

The monetary factors include wage loss and personal and medical care expenses, while non-monetary factors include loss of life’s pleasures, embarrassment and humiliation, Casey said.

Despite being paraplegic, Davenport, 60, is healthy and estimated to have a normal life expectancy.

McCluskey testified during the trial that he typically does not give patients a specific prognosis in similar scenarios and maintained that he did not recall the specific conversation referenced by Davenport.

“While Dr. McCluskey may not remember this — which is not surprising since doctors see many patients and this was eight years ago … Mr. Davenport remembered very well the day that Dr. McCluskey told him he was going to die,” Casey said.

The defense argued that McCluskey’s diagnosis was reasonable and that he was denied the opportunity to “revise” his diagnosis since Davenport did not return and was treated by his local physician, according to court documents.

“We in turn argued that with a certain diagnosis, one should not expect a patient to believe it was necessary to go back to that doctor to see if the diagnosis needs to be revised,” Casey said.

Casey also noted that there was no evidence that McCluskey told Davenport to return for a future visit.

“There is no evidence that [Davenport] did anything contrary to what Dr. McCluskey told him to do,” Casey said.

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