$16.7M Verdict in Lung Cancer Malpractice Lawsuit

2014 Medical Malpractice Trial Report

47-year-old woman dies from delay in diagnosis of lung cancer at Brigham and Women's Hospital

The plaintiff was the daughter of a 47-year-old woman who died after a delay in the diagnosis of her lung cancer. On 10/28/06, the plaintiff’s decedent presented to Brigham and Women’s Hospital with complaints of shortness of breath and a cough. As a result of her complaints, a chest x-ray was ordered and interpreted as normal by the defendant, Peter Clarke, M.D. Thus, she was discharged home with a diagnosis of an upper respiratory infection. Thirteen months later, plaintiff’s decedent had a chest CT scan which showed a very large lung nodule in the upper part of her right lung. There were also multiple lung nodules spread throughout both of her lungs and in many lymph nodes.

The plaintiff argued, and Dr. Clarke agreed, that on 10/28/06, the chest x-ray did show a 1-1.5cm nodular density in the upper part of the right lung. The defendant further acknowledged that he did not identify or report it. As a result, the plaintiff’s decedent’s lung cancer was not diagnosed or treated for thirteen months, leading to metastatic lung cancer and, ultimately, her death on 8/23/08. The plaintiff’s experts explained to the jury at trial that had the chest x-ray been interpreted accurately, the cancer would have been diagnosed, treated, and more likely than not the plaintiff’s decedent would have survived her lung cancer.

The defense argued that the nodular density was subtle and difficult to see. Although present on a retrospective review of the film, the defendant argued that it was reasonable for Dr. Clarke to have not identified it at the time of the original study. Further, the defendant and his experts argued that the thirteen month delay in the diagnosis made no difference in Ms. Ellis’s ultimate outcome. It was the opinion of the defendant’s oncology expert that the plaintiff’s decedent would have still died from her lung cancer even if she had been diagnosed in October 2006.

After deliberations of approximately 3 hours, the jury returned a verdict against Dr. Clarke for $11,000,000. The jury awarded $1,000,000 for conscious pain and suffering, $3,000,000 for the plaintiff’s loss of consortium up to the time of the verdict and $7,000,000 for the plaintiff’s loss of consortium into the future. The total judgment was $16,764,603 after the addition of pre-verdict statutory interest.

Lubin & Meyer attorneys Robert M. Higgins and Barrie Duchesneau represented the plaintiff in this medical malpractice lawsuit.


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