Widow loses Togus lawsuit, awarded $100,000 for distress

The widow of a Bradley man has been awarded $100,000 in damages for emotional distress, but lost her negligence suit against the veterans hospital in Togus.

U.S. District Judge George Singal ruled last month in Portland that doctors who treated Steven W. Benson were negligent in their failure to promptly diagnose and treat him for cancer, but found that Rose Marie Benson’s attorneys failed to prove that negligence of Togus doctors caused the man’s death.

Steven Benson was 55 when he died June 23, 2000.

Rose Marie Benson sued the Department of Veterans Affairs Medical and Regional Office Center at Togus in January 2002 under the Federal Torts Claims Act. The law allows people to sue the federal government under limited circumstances and have a trial before a federal judge but not a jury. The widow would have been entitled to a jury trial if she had sued a private hospital and its staff physicians.

Steven Benson had a resection of the prostate at the Togus facility in May 1997. Findings were negative for cancer. In September 1997, he began complaining to physicians there and at Eastern Maine Medical Center in Bangor of a lump in his right cheek. A biopsy was not performed on the lump until May 1999.

The next month, he was told that he suffered from a virulent form of skin cancer that had progressed from a lesion on his right cheek to invade the lymph nodes on both sides of his neck and that the cancer was likely incurable.

In his written ruling on the case, Singal referred to the testimony of defense witness Dr. John Clark, director of the Head and Neck Cancer Center at Massachusetts General Hospital in Boston. Clark testified that by the time Benson’s prostate cancer had spread, there was no effective cancer treatment, so the delay in performing a biopsy on his cheek lesion made no difference in prevention his death.

Singal, however, also ruled that Steven Benson suffered severe emotional distress as a result of the delayed diagnosis. Under Maine law, a plaintiff’s failure to prove the existence of negligence does not preclude recovery for negligent infliction of emotional distress. The judge awarded the widow $100,000.

Rose Marie Benson’s attorney, Terrence Garmey of Portland, called the ruling “bittersweet.”

“We believe we proved this was malpractice that emotionally injured and caused the premature death of Mr. Benson,” he said in a phone interview Monday. “It was also a fair and compassionate verdict on the issue of damages.”

Rose Marie Benson was out of the country and unavailable for comment, according to Garmey, who worked on the case with his law partner, Ketih Jacques, for 16 months.

Assistant U.S. Attorney Evan Roth of Portland defended doctors at Togus before Singal. He declined Monday to comment on the case because his office is considering whether to appeal Singal’s decision to the 1st Circuit Court of Appeals in Boston. Roth has until mid-July to file an appeal.