Perry mammogram lawsuit can go to trial, judge rules

Etherene Fendley went to the Perry Hospital for a mammogram in July 2009.

Afterward, she got a letter from the hospital saying her results were normal. Her films would be kept for several years.

But in 2010, the now 81-year-old Fendley got a call from the hospital saying she needed to have a new mammogram.

“I feared that my 2009 test showed cancer and I had not been told,” Fendley wrote in a 2013 affidavit.

She had two sisters who’d suffered from breast cancer.

“I was very afraid that this cancer had grown inside me for over a year,” Fendley wrote.

Fendley and more than a dozen other women whose mammogram tests were falsely entered with negative test results between 2008 and 2010 filed a lawsuit against the hospital in 2012.

Authorities have said 10 of the 1,289 negative results filed in patient records were actually positive.

In an order signed earlier this month, Bibb County Superior Court Judge Edgar W. Ennis Jr. denied motions filed by Houston Hospitals Inc. and Houston Healthcare Systems that the hospital be removed from the 14 still-pending lawsuits. Hospital representatives had maintained that the suits were filed outside the allowed two-year window, and that radiology technician Rachael Michelle Rapraeger was acting outside her scope of employment when she falsified the results.

The judge also wrote that he couldn’t dismiss portions of the suits alleging emotional distress, breach of contract, negligent supervision and that the hospital was a party to fraud, saying those are issues for a jury to decide.

The suits named Houston Hospitals Inc. and Houston Healthcare Systems — doing business as Perry Hospital — independent contractors Universal Radiology and Staff Care, and Rapraeger as defendants.

Citing the pending litigation, an attorney representing Houston Healthcare declined comment.

In court filings, the hospital has contended that it wasn’t complicit in Rapraeger’s conduct and shouldn’t be held liable.

Reached for comment, Neal Graham, the plaintiffs’ attorney, said, “I think the judge made the correct decision on allowing this case to be heard by a jury. ... I know my clients were very happy that he gave them this opportunity.”

In his order, Ennis dismissed claims against Universal Radiology and Staff Care — companies that provided radiologists to read Perry Hospital’s mammogram results — due to a lack of evidence implicating the companies in any misconduct.

Rapraeger, who pleaded guilty in 2014 to computer forgery and 10 counts of misdemeanor reckless conduct, remains a party to the suit.

She was fined $12,500 for her criminal conduct and sentenced to a stint in a probation detention center followed by about nine years on probation.

Rapraeger is in default, having entered no responses to any of the lawsuits.

‘I worry I may still have cancer’

Rapraeger first applied for a job as a day shift X-ray technician at Perry Hospital in 2001.

She became a mammography technologist in 2005 and by 2009 was a radiology lead technologist with responsibility for supervision and oversight in the department, according to court documents.

In April 2010, the hospital discovered that Rapraeger had been using a radiologist’s password to access the hospital’s computer system and falsely post results. She should have instead been forwarding the images from tests to a radiologist for review, according to the judge’s May 2 order.

Women who’d had mammograms with falsified results were given follow-up mammograms at no cost.

“Providentially, the new results for each of the plaintiffs showed what the earlier bogus results purported to show: no adverse breast health conditions were present,” according to the judge’s order.

Several of the women who filed suit have signed sworn statements saying they would have taken action much earlier had they known something was amiss, and that they felt the hospital withheld information from them for some time without explanation.

Fendley wrote that she was told her May 4, 2010, mammogram would be free because they were testing new equipment and learned months later by reading The Telegraph that she was a victim of fraud.

Evelyn Hunt, now 82, wrote in an affidavit that she went in for her annual mammogram in May 2010 and was told that her 2009 test needed to be repeated “because there was a problem with the equipment” from 2009.

Even after having a repeat mammogram in 2011, she said she felt uneasy.

“I worry I may still have cancer,” she wrote in a 2013 affidavit.

A destroyed hard drive

Among the issues addressed in Ennis’ order is the plaintiffs’ contention that the hospital acted negligently through a “spoilation of evidence.”

Evidence shows the hospital destroyed the hard drive on Rapraeger’s computer after discovering that she’d filed the false results and that the hospital’s explanation for its conduct is “insufficient,” Ennis wrote.

The hospital claimed the destruction was “innocent” and part of an ongoing plan for upgrades, according to the order.

“The timing of this destruction is suspicious, occurring shortly after hospital management learned of the scope and severity of Rapraeger’s conduct and with an appreciation of the potential for a public relations and litigation firestorm,” the judge wrote.

The hospital’s overall program that stored information about mammograms also “crashed,” and no meaningful data could be retrieved, according to the order.

At trial, the hospital will be allowed to offer evidence to jurors of the destruction and its timing.

As part of his order, Ennis also instructed the plaintiffs to better describe their allegations that the hospital and Rapraeger committed computer fraud, unlawful billing procedures and other misconduct in violation of Georgia’s Racketeer Influenced and Corrupt Organizations Act.

The updated “bill of particulars” is due next month.

Days after Ennis signed the order, he approved a request filed by the hospital for an appeal of his decision to the Georgia Court of Appeals.

This story was originally published May 21, 2016 at 8:39 PM with the headline "Perry mammogram lawsuit can go to trial, judge rules."