Verdict doesn't ease pain in Kingman malpractice case

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."