March 2023 Affidavit of Howard K. Steinman, MD, regarding Tony Waldrop

PERSONALLY APPEARS before the undersigned authority, duly authorized to administer oaths, comes Howard K. Steinman, MD, who after first being duly sworn, states as follows:

Introduction

1.             Plaintiff’s counsel has asked me to provide an affidavit to address a variety of follow-up issues that Plaintiff’s counsel would have asked me about at my February 8, 2023, deposition, if time had permitted.

2.             This affidavit supplements, but does not replace, my prior testimony by affidavit and deposition.

3.             At trial, I will testify about any issue I am asked about, if I have testimony to give on the issue.

4.             There are many issues, sub-issues, related issues, incidental issues, etc. in this case. I cannot provide an exhaustive list of all the issues, sub-issues, related issues, incidental issues, etc.

5.             At my deposition, asking me generally what opinions I intend to offer at trial would lead to an incomplete answer: first, because I don’t know every issue, sub-issue, related issue, etc. that I will be asked about; second, because even as to the many issues I have considered, I cannot bring them all to mind with a general prompt.

6.             Therefore, if the Defense wants to know all my conclusions in detail, the Defense must ask me about the specific issues.

7.             I encourage the Defense to make a list of all issues, sub-issues, etc. that the Defense believes are relevant to this case, and to ask me about each of them specifically.

8.             When deposed in this case, I am happy to give conclusions that assume the truth of anything the questioner says or assumes. However, by doing so I do not confirm or endorse what the questioner says or assumes. And obviously if what the questioner says or assumes is not true, then any conclusion based on it may not be true.

Slide Quality over Time

9.             As a director and instructor of an annual Mohs training course, I have reviewed hundreds of Mohs slides that are many years old.

10.          The quality of slides generally does not deteriorate over time except mainly as to the staining quality and cover slip issues.

11.          Passage of time does not cause tissue wafer folding and overlap as was present in the Stage III slides in this case.

12.           Passage of time does not cause tissue wafer holes or marginal gaps

13.         

Slide Quality

14.          It is highly likely that insufficient tissue wafers were created on Stage III of the June 26th Mohs surgery procedure, for Dr. Payne to conclude that margins clear of tumor had been achieved.

Integrity of the Records

15.          It is strange that in the records Dr. Payne produced in this lawsuit, some of the records are signed, but some are not.

16.          It is also unusual that Dr. Payne did not initial various pathology/laboratory reports. Standard practice is for the physician to initial and date them to indicate having received and reviewed the reports.

17.          It is also strange that Dr. Payne’s records include no photographs, except for the photo that Tony Waldrop sent by text message. It is common practice — particularly in the era of digital cameras and smart phones — for dermatologists to take pictures and put them in the patient’s record. The near-total absence of photographs is unusual and surprising. Dr. Payne performed some cosmetic procedures for improvement of Tony Waldrop’s Mohs surgery scars (i.e., Fraxel treatments). It is hard to imagine that Dr. Payne’s practice was never to take photos of his cosmetic patients. If Dr. Payne did generally take such photographs, then it would be odd that he would make an exception for Tony Waldrop — both a cancer patient and (relatedly, secondarily) a cosmetic-procedure patient.

18.          Further, it is not only strange but a standard-of-care violation that Dr. Payne’s June 26 Mohs surgery report (the report, not the map) includes no description or details of the stages of the surgery for the right preauricular site, although the report does contain such details for the forehead site.

19.          I don’t know what to make of these oddities, and I offer no definitive conclusion. But it is strange and noteworthy. It does raise a question about the integrity of the records.

20.          Note that I have not attempted to exhaustively catalogue here all concerns with Dr. Payne’s record-keeping. I would be happy to do so in a deposition, if asked.

After June 26, 2013

The Disconnect

21.          For most of the period between June 26, 2013, and the referral to Dr. Burke Robinson on February 4, 2014, there is a disconnect between Dr. Payne’s medical records and other sources.

22.          On February 5, 2014, Dr. Robinson took a history stating that the abnormality at the site of the right preauricular cancer — the abnormality Dr. Payne called a cyst — started soon after the June 26 Mohs surgery.

23.          Dr. Robinson immediately referred Tony to an ENT surgeon, Dr. Andrew Golde — who saw Tony the same day, February 5.

24.          Dr. Golde’s history also stated that the abnormality appeared soon after the June 26 Mohs surgery.

25.          It is unlikely that the right preauricular site showed visible surface changes from the cancer recurrence as early as “2-3 days after” the June 26 Mohs surgery, although it is plausible that he was suffering pain from nerve involvement of the cancer by August.

26.          In Tony’s March 25, 2016, deposition, he recounted that at the August 6, 2013, office visit, he reported pain at the right preauricular site that was greater than what he expected following Mohs surgery:

27.          In the March 2016 deposition, Tony also testified that he saw Dr. Payne between the August 6 and October 22 visits recorded in Dr. Payne’s records. Tony testified that at that unrecorded visit, the right preauricular site now had “swelling  close to three-eighths, maybe even a half inch large.”

28.          It is plausible that Tony felt disproportionate pain from deep-seated perineural invasion as early as August, and that surface changes would not have been visible until September or October.

29.          Tony’s account, as recorded in the histories taken on February 5, 2014, and in his March 2016 deposition, is consistent with the large lump visible in the December 9, 2013, photograph that Tony texted to Dr. Payne, as well as the later PET CT findings and other evidence of the extent of the tumor when it was finally investigated by Dr. Golde.

30.          Dr. Payne’s records show Tony appearing in his office for evaluation and/or treatment of the right preauricular site in July, August, October, and November. But not until December do these records reflect any significant abnormality at the site of the right preauricular Mohs surgery.

31.          Even in January, after the December 18 & 31 visits, Dr. Payne performed a Mohs surgery at the right postauricular site — near to the right preauricular — and yet made no comment at all about the right preauricular surgery site. This omission (and others) is highly conspicuous, highly unusual, and contradicts any assumption that Dr. Payne could be relied on to keep reasonably complete records.

Non-Expert Issue

32.          I personally find it hard to imagine any competent dermatologist seeing Tony in the July – November period complaining about disproportionate pain at the right preauricular site and failing to recognize a concern about recurrent cancer — and failing even to document it.

33.          The disconnect is disturbing to me, in part because every possible explanation I can think of seems either implausible or extremely disquieting:

a.    Possibly, Tony Waldrop’s memory was dramatically inaccurate on February 5, 2014 — when he still thought it was a cyst. That seems highly implausible to me, in part because of the firm evidence we have about the extent of the tumor by then, and the rate at which cancers grow.

b.    Possibly, Dr. Payne did not remember that Tony had perineural invasion at the site. This is plausible because of Dr. Payne’s poor record-keeping. Even so, disproportionate, continuous, and increasing pain at the site should have raised concern for recurrent cancer.

c.     Possibly, Dr. Payne was simply “checked out” and never considered the possibility of recurrent cancer on the follow-up visits. But given Tony’s cancer history and the features of this SCC, this possibility is also disturbing.

d.    Possibly, Dr. Payne had not discovered the PNI in the first place, and falsified his Mohs map after the lawsuit was filed. That possibility is so disturbing that I don’t want to consider it.

34.          I cannot offer a conclusion as to what the true explanation is. I don’t think any expert can.

35.          The most that I or any expert can offer to assist the jury is to identify the possible explanations.

Conditional Conclusions

36.          Because there is uncertainty about the basic facts in the period between June 26 and December 9 (the text-message picture), neither I nor any expert can have enough information to offer a definitive conclusion about whether Dr. Payne was negligent in that time period.

37.          However, I can offer conditional conclusions depending on what the jury may decide the true facts are.

38.          The following conclusions assume the truth of Tony’s account.

39.          If Tony’s account is roughly accurate, then Dr. Payne was repeatedly, grossly negligent in the July – November period, in the following ways:

a.    Failing to recognize an obvious risk of recurrent squamous cell carcinoma.

b.    Failing to document a history of the problem.

c.     Failing to document a physical exam related to the problem.

d.    Failing either (a) to refer Tony to a cancer specialist for investigation of potential recurrent cancer, or (b) to investigate it himself. Investigation would include biopsy and/or imaging.

e.     Failing to document the problem at all.

f.      Failing to document PNI anywhere other than the Mohs map.

40.          If Tony’s account is even close to accurate, then it is difficult to express how extreme Dr. Payne’s negligence was.

41.          Plaintiff’s counsel has shown me some of the language of Georgia’s punitive-damages statute:

“Punitive damages may be awarded [when] it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

42.          If Tony’s account is even close to accurate, then Dr. Payne’s negligence in the July – November period shows “wantonness” or “that entire want of care which would raise the presumption of conscious indifference to consequences.”

Post-June Causation

43.          Based on my education and experience in treating skin cancer, I can draw the following conclusions:

a.    The face cancer that required major surgery in February 2014 was a recurrence of the squamous cell carcinoma Dr. Payne performed Mohs surgery on in June 2013.

b.    The cancer continued to grow from the time of the Mohs surgery.

c.     Cancer grows exponentially — meaning that even with a steady rate of growth, the absolute growth (numbers of cells and measured volume) in a given time period increases over time. Early on, the cancer appears to grow slowly. Later, it appears to grow faster.

d.    The earlier a skin cancer is treated, less is the potential harm and morbidity from the treatment itself.  

e.     If Tony’s recurrent cancer had been treated in the July to December time frame, the treatment for it likely would have been significantly less invasive, and the harm from the treatment significantly less. Very likely, the:

                                              i.     tumor would have been is smaller

                                            ii.     size and anatomic depth of required treatment would been less

                                          iii.     damage to deep anatomic structures would have been reduced or elimated

                                           iv.     reconstruction would have been smaller and simpler

                                             v.     potential risks and complications would have been lowered

                                           vi.     potential need and/or extent of adjuvant therapy would have been less.

f.      Because cancer grows exponentially, the growth from December 9 (the text-message picture) to February 4 was likely dramatic. Dr. Payne’s nearly two-month delay in referring Tony to Dr. Robinson likely made a dramatic difference in the size and depth of invasion of the cancer.

g.    For the details on these differences, however, I would defer to a radiation oncologist and surgical oncologist. Additionally, while it may well be that treatment in January would have led to a much better outcome for Tony, I do not have an opinion on that but rather defer to other specialists.

44.          I do not have an opinion on the last date by which treatment could have consisted solely of radiation therapy. I do not have an opinion on the last date (if ever) by which treatment could have consisted solely of surgery.

Tony was not Doomed

45.          Before Dr. Payne’s negligence, Tony Waldrop was not doomed to suffer major harm from skin cancer.

46.          Generally, skin cancers are well treatable without serious, long-term harm. That is particularly true for a patient like Tony Waldrop, who was aware of his skin-cancer risk and regularly saw dermatologists to screen for skin cancer.

47.           Before Dr. Payne’s negligence, Tony was not destined to suffer the major face cancer that developed after Dr. Payne’s June 26 Mohs surgery and subsequent negligence.

48.          If not for Dr. Payne’s negligence, there would be no reason to expect that Tony would live out the rest of his life with the suffering he endured.

Additional Literature

49.          In addition to the literature I previously supplied, I am providing an excerpt from the AJCC Cancer Staging Manual, 7th Edition (2010). I am happy to discuss the significance of it at a follow-up deposition.

                                                                                    Howard K. Steinman, MD

SWORN TO AND SUBSCRIBED before me

_________________, 2023

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NOTARY PUBLIC

My Commission Expires: