Two lawsuits have now been filed in Durham Superior Court against Duke University, Duke University Health System and other members of the Duke Medicine community.
Former patients of discredited Duke cancer researcher Anil Potti have filed complaints in early September. The first suit was filed by eight joint plaintiffs Sept. 7. A second suit, was filed the same day by a single plaintiff—breast cancer patient Joyce Shoffner of Wake County.
Lawyer Robert Zaytoun of Raleigh, N.C. filed the 82-page lawsuit on behalf of Shoffner. The suit states that in seeking treatment for breast cancer, Shoffner participated in clinical trials based on the research of Anil Potti.
“There is a lot of common information alleged in the [two] complaints,” Zaytoun said. “The reason for that is there is already a lot of information already out into the public domain about the faulty nature of how these trials were run, the science that underpinned the trials and the trials themselves.”
DUHS does not comment on active litigation, said Doug Stokke, DUHS associate vice president for communications.
“The case is not simply about scientists and research but about real people who were to receive clinical benefits of that science and who are a very vulnerable population—physically and emotionally,” Zaytoun said.
Zaytoun alleges in the lawsuit that Duke and DUHS knew— or should have known—of flaws in Potti’s data. He said this makes them negligent for allowing the trials to continue.
“As a result of [Shoffner’s] receipt of improper chemotherapy poison over a period of time and her participation in the clinical trial at issue, no standard chemotherapy treatment was given to the Plaintiff,” according to the lawsuit. “.... She did not seek any proper treatment for her cancer because Duke University and/or DUHS delayed and obfuscated the truth.”
Zaytoun declined to comment on the specifics of the case beyond what had been alleged in the complaint.
These sorts of cases typically take 12 to 18 months from the filing to the start of trial, said Donald Beskind, professor of the practice of law and former civil litigator with experience working on medical negligence cases, though not this case in particular.
“This [case] may be more or less complicated [than other cases],” Beskind said. “Cases tend to move along in Durham. Durham’s a pretty well-run county in terms of moving the docket along.”
A typical malpractice suit involves a patient alleging a doctor’s mistake had caused them harm, Beskind said. This case, however, questions the procedure itself—not its execution. The plaintiff claims that her injury lies in the fact that she was misled by Duke’s support of Potti’s research to forego conventional cancer treatment.
“The plaintiff has to prove that the differing treatment—or delay in treatment they allege—made a difference in the outcome,” he said.
After the filing of complaints, Duke has time to respond to the allegations and either accept or deny them. The differences between the opposing claims will then be argued before a jury, after both sides conduct depositions and determine expert witnesses, Beskind said.
“[Currently] only one side’s cards are on the table,” he said. “ We’re waiting to see what the other side has.”
Beskind noted that Duke—like all major medical institutions—is heavily insured in case of lawsuits such as these, so there is little risk of financial fallout.
“Maybe if [a settlement] was big enough it could make a difference in the premiums for the coming year,” he said. “Presumably, more concerning to Duke would be the allegation that it did not appropriately concern [itself with] its patients and that’s something I would expect Duke to hotly contest.”
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