Breast cancer diagnosis delay lawsuit settles for $450,000

2004 Medical Malpractice Settlement Report

One year delay in diagnosis and treatment of breast cancer—surgeon failed to biopsy palpable mass. Pathologist misread cytology smear.

The plaintiff is a 63 year old woman who was diagnosed with node positive breast cancer 7 years ago, in 1997. During the year prior to her diagnosis, she was evaluated twice by the defendant surgeon and once by the defendant pathologist for a persistent right breast lump. On each occasion, the defendants deviated from the accepted standard of care when they failed to take the appropriate steps to diagnose or rule out breast cancer. As a direct result, the plaintiff suffered a significant delay in the diagnosis and treatment of her breast cancer, allowing it to spread beyond her breast to an axillary lymph node.

On 3/18/96, the plaintiff saw her gynecologist for an annual exam. She was then 55 years old, menopausal, and taking hormone replacement therapy. The gynecologist noted a palpable right breast mass in the 10 o'clock position. She was unable to aspirate fluid from the mass, and referred the plaintiff to the defendant surgeon.

On 3/27/96, the defendant surgeon noted that he appreciated the worrisome area and believed that it was fibrocystic tissue, which was a little bit more pronounced than other areas of the breast. He referred the plaintiff to the defendant pathologist for fine needle aspiration of the area. On 3/27/96, the defendant pathologist reported that the specimen was negative for malignant cells, and revealed findings consistent with fibrocystic changes.

The plaintiff’s right breast mass persisted. Six months after the fine needle aspiration, on 9/25/96, the plaintiff returned to see her gynecologist who again noted the same right breast mass. She was unable to aspirate fluid, and again referred the plaintiff to the defendant surgeon. On 10/16/96, the defendant surgeon noted prominent breast tissue in the upper outer quadrant of the right breast that corresponded to the area palpated by the gynecologist. He indicated that he believed that this was normal and that no work-up was necessary. He further advised that the plaintiff could continue her hormone replacement therapy.

On 3/5/97, the plaintiff returned again to her gynecologist who again noted the presence of the right breast mass. This time, the gynecologist referred the plaintiff to a different surgeon who stopped the hormone replacement therapy and scheduled an excisional biopsy of the mass. The biopsy revealed invasive ductal carcinoma with 1 of 11 axillary lymph nodes positive for cancer.

After diagnosis, the plaintiff underwent both chemotherapy and radiation therapy. As of the time of settlement, the plaintiff has not had any recurrence of her breast cancer.

The plaintiff’s contention is that the defendant surgeon rendered substandard care when he failed to reexamine the plaintiff’s right breast after the fine needle aspiration, when he failed to recommend the discontinuation of the hormone replacement therapy until the diagnosis of breast cancer was definitively ruled out, and when he failed to perform an open excisional biopsy of the palpable mass. Further, the plaintiff contends that the defendant pathologist misread the fine needle aspirate. It is the plaintiff’s position that the cells in the 3/27/96 fine needle aspirate were not normal, as reported, but rather were atypical and suggestive of cancer. Finally, the plaintiff contends that had the surgeon performed open biopsy, the cancer would have been detected before spreading to the lymph nodes. As well, proper reporting of the fine needle aspirate would likely have led to open biopsy and timely diagnosis.

The defendants claim that their care was at all times within the accepted standard of care and that nothing done or omitted by them caused the plaintiff’s cancer to worsen.

Lubin & Meyer attorneys represented the plaintiff in this breast cancer malpractice lawsuit.

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