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8/29/2013 6:00:00 AM
Verdict doesn't ease pain in Kingman malpractice case
Doug McMurdo
Miner Staff Reporter

KINGMAN - A neurologist who practices at Kingman Regional Medical Center did not commit medical malpractice when a patient's malignant brain tumor went undetected for seven years, a Mohave County jury decided this week.

The verdict came after a complex and emotional trial that lasted nearly three weeks.

Eight of the nine jurors, who deliberated for roughly six hours Tuesday, ruled in favor of Dr. Nimfa Aguila.

Aguila broke down in tears after the verdict was read. The plaintiff, Jennifer Aday, appeared to have no idea what just happened.

Her husband, Richard, in an emotional outburst after the hearing, shouted at the doctor, telling her he hopes that one day when she falls ill she has the same kind of medical care his wife received from her.

The one juror who did not agree with the verdict did not speak to the Miner, but the case was anything but black and white.

In lengthy closing arguments held Monday afternoon in front of Judge Lee Jantzen, Aday's attorney Richard Weissman said Aguila misdiagnosed Aday's brain cancer and refused to even consider it as a cause of her health issues, her diminished cognitive functions and other facets of her health.

Aguila thought the woman had a relatively rare condition known as tumor-like multiple sclerosis.

Weissman, who practices in the Phoenix area, said Aguila ruled out cancer despite the fact Aday displayed no clinical symptoms of multiple sclerosis.

He also pointed out what Aguila thought was an MS lesion doubled in volume between 2001 and 2008, something lesions don't do.

"She could have saved her life with a simple biopsy," said Weissman. "This should have never happened."

Aday's cancer wasn't diagnosed until 2008, when she began to have seizures and her neurological functions began to rapidly deteriorate.

Aday, 41, has been in a "childlike" state since then and Weissman said she has a year to live.

"I think Dr. Aguila messed up royally in this case," he said.

Jim Broening, Aguila's defense attorney, told jurors that the Aday family certainly deserved sympathy and compassion, but that they had to set that aside and decide the case on the testimony.

"You have to reason through the facts," he said. "The evidence shows the cancer was camouflaged by what everyone thought was the (tumor-like multiple sclerosis)."

Broening said a combination of factors played into the tragic case, starting with Aday's morbid obesity.

She weighed more than 400 pounds until she underwent gastric bypass surgery in 2008, he said, and the MS was progressive.

He also pointed out Aday suffered a stroke.

"It was tragic what happened to the Adays," he said, noting that TMS "always mimics a brain tumor."

Perhaps most unfair of all, while Aguila never ordered a biopsy of the tumor, it is considered unsafe and perhaps fatal to biopsy a brain lesion caused by tumor-like multiple sclerosis.

The Catch-22 prompted her attorney to tell the jury, "She's danged if she doesn't, she's danged if she does."

He also pointed out no less than 15 doctors who treated Aday over the years believed she had tumor-like multiple sclerosis and only one thought it might be a brain tumor.

According to Science Daily, people who do have tumor-like multiple sclerosis actually have a significantly reduced risk of developing brain cancer than do people that don't.

Richard Aday testified Aguila never advised the family there was any chance she had a cancerous brain tumor, but Aguila had said the family was advised and decided to take a wait-and-see approach.

"She never once told us to see a neurosurgeon," said Richard Aday. "Her lawyer called me a liar for telling the jury that, but God knows the truth and her own notes tell the truth."

While the Aday family remains livid over the standard of care Aguila provided, Richard Aday holds no malice toward the jury.

"Defense attorneys have to be amoral sometimes because everybody deserves a defense, but I don't know how they sleep at night. He just threw so much stuff out there and I think it confused the jury."

And while not naming Aguila directly, Richard Aday encouraged anyone with a serious medical issue to seek a second opinion.

He said there has never been a definite diagnosis that his wife has multiple sclerosis, but he did say once his wife quit taking the medicine for MS she began to do a little better.

"MS is an exclusionary diagnosis," he explained. "Once you rule out everything else, then you say it's MS. Dr. Aguila never took the proper steps to rule out brain cancer."

On Tuesday, Richard Aday said he would consider filing an appeal, but by Wednesday he changed his mind.

"I don't think it would change anything," he said.

In the meantime, the family of four is struggling financially and emotionally.

Richard has not worked for quite a while because his wife requires 24-hour care.

The Adays and their two daughters have survived, he said, largely by the grace of the Salvation Army.

"If anyone wants to help my family, they can donate to the Salvation Army and the American Cancer Society," he said.

"I'll make it work. We'll make it work. I have no choice but to move on."

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Reader Comments

Posted: Monday, September 2, 2013
Article comment by: Edward Tomchin

@ Frederick Williams

Yes, I agree. There are some very good doctors in this community. I'm fortunate enough to be under the care of a couple of them. But there are also some very bad doctors in this community, and unfortunately I've had experience with them as well. Doctors with bad records in other states can come here and get licensed. Medical practitioners come to the Kingman area because of the lax standards. Some medical professionals have come here and left again, shaking their heads. I know of two personally and have heard of many others. Mohave County is still an outlaw county but in mitigation, no where near as bad as it was twenty years ago. I am also as puzzled as ever over why the good don't speak out against the bad. One would think cleaning one's own ranks of the bad apples would be desirable.

Posted: Monday, September 2, 2013
Article comment by: Lizz Aday

Allow me to say, I know my mom and we were very close, But I know this doctor messed up, She messed up horribly, Failing to fill my moms "MS" Meds, Making her sicker, She sickens me, She REALLY sickens me, So don't be going around saying Doctors are not god, When this doctor had the choice to look at past medical records when it said "May be MS Check monthly." But No! She failed to do so, And just used her own method of diagnosing a patient

Posted: Saturday, August 31, 2013
Article comment by: Kingman Resident

SEVEN YEARS people being treated for the wrong illness while you had a ticking time bomb in your head.

Posted: Friday, August 30, 2013
Article comment by: Another Thought

I do sympathize with the family, not everything is written in stone when it comes to medical issues, there is always a margin of error. Bush was wrong, "thousands died" and yet he goes on with life as usual. Doctors are not gods, they are people just like you and I and people can't be expected to be right 100% of the time.

Posted: Friday, August 30, 2013
Article comment by: Frederick Williams

Hi Edward, I am not saying that what you said is not true but I do find it a little hard to believe in a loose conspiracy.. I do know there are some very good doctors here in Kingman who hold themselves to a very High standard of practice. At the same time there are some who I will never go back to.

Posted: Friday, August 30, 2013
Article comment by: J L

This story kind of gives me the chills. I too saw this doctor and the outcome of my scan was a diagnosis of everything was okay except for a spot in my brain where she said a couple of markings meant MS. To keep an eye on it. I'm not saying she is wrong in my diagnosis but what if? Second opinions are always the best answer. And keep going to try and find out what's happening even if it takes seeing ten doctors, until you find a doctor who is willing to find the answer to make you feel good again or at least get the answers you seek.

Posted: Friday, August 30, 2013
Article comment by: CC DUBYA

Doctors don't come this community to PRACTICE medicine because they are stellar physicians. Those doctors go to the big cities where they can advance. The locals are only feeding off the populations income and trying to avoid burying any mistakes. This is base on personal experiance not observation. Apparently the Dentists are just as bad judging from the number of people walking around with poor dental care.

Posted: Friday, August 30, 2013
Article comment by: Grandma Knows best

First mistake is getting involved with the medical profession at all. They are in cahoots with the pharmaceutical companies. Not good. The poor woman must have had a terrible diet, the FDA is not looking out for you. There is fluoride and chlorine in your drinking water, PBAs in plastics, GMOs in your food. Eat organic, filter water and read labels at the grocery store. Make your own meals, don't eat junk food, fast food or high fructose corn syrup, limit sugar and wheat. Check out nutritional supplements. Educate yourself, your life is at risk.

Posted: Friday, August 30, 2013
Article comment by: Trained Observer

Get out your tin foil hats folks cuz the conspiracy theory people are out and about.
Sorry that doctors are not god. If 15 doctors said the same thing, most people would go with it.

Posted: Friday, August 30, 2013
Article comment by: R .

I've been seeing Dr. Aguila for almost a year now. She listened closely and reviewed the list of symptoms I had been experiencing for many years that other doctors (in Kingman and elsewhere) had never bothered to take the time to connect or properly diagnose, and she ultimately diagnosed me with Multiple Sclerosis. She immediately wrote the orders for me to get an MRI of my brain and a spinal tap which confirmed her suspicions. She and her staff have been very kind to me and so incredibly helpful, beyond words. I believe wholeheartedly --based on all she's said she would do and all that she's already done for me-- that she really cares deeply about her patients, more than she does money...and I can't think of one doctor, NOT ONE, in all my life that I can say that about. I'm very grateful for her and her staff.

Posted: Thursday, August 29, 2013
Article comment by: RED LINE MR.C.

"Cancer" I have only the deepest sympathy for the plaintiff and hes family. The doctor concerned will go back to Hes/her practice feeling vindicated. While the patient and her family will struggle for some time too come.

In my humble opinion, the red line crossed here was SEVEN YEARS of mistreating a disease that wasn't.

@ Edward Tomchin, Ed you may or may not be right in you comment, hopefully your suspensions are unfounded.

Posted: Thursday, August 29, 2013
Article comment by: Edward Tomchin

I have detected what I suspect is a loose conspiracy among the medical practitioners in this community to keep the standard of care bar as low as possible. In medical malpractice suits, the standard of care the doctor is held to is the local standard, and if the local standard of care is very low, no doctor will ever be found guilty of malpractice, no matter how guilty they really are.

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