Delay in diagnosing breast cancer brings one million dollar medical malpractice settlement

2002 Medical Malpractice Settlement Report

The plaintiff’s decedent was a 37-year-old woman who was diagnosed with breast cancer in the summer of 1996 and died in 1999. Her estate brought an action alleging a two-year delay in diagnosis. The two defendants, an Ob/Gyn and a surgeon, denied there was any delay in the diagnosis, and relied on the medical records that showed the decedent first complained of breast tenderness and fullness six months before diagnosis and those complaints were appropriately worked up. Prior to her death, the decedent prepared an Affidavit asserting she first complained of breast soreness to her Ob/Gyn in June 1994. There was no corresponding documentation in the decedent’s medical records to support he decedent’s claim, nor was there any evidence the decedent ever returned to see the Ob/Gyn for any reason during the next 18 months.

The plaintiff claimed that the defendant Ob/Gyn was negligent in failing to appreciate and respond in a timely way to the plaintiff’s decedent’s complaints of skin thickening, swelling, and redness in her left breast. The decedent also reported she had breast pain lasting through her menstrual cycle. The defense contended that pain is not usually associated with cancer, and the decedent was an unlikely candidate to get breast cancer given her young age.

The defendant Ob/Gyn contended that in December 1995, she performed a breast examination on the decedent that was normal but there was a vague fullness in the outer aspect of the left breast. The Ob/Gyn did not find any mass in the left breast and a needle aspiration was undertaken to see if she could obtain any fluid from any possible breast cyst in an effort to relieve any discomfort, but no fluid was returned. The Ob/Gyn then ordered bilateral mammography and prescribed Motrin.

The decedent had mammograms on January 2, 1996, at Newton-Wellesley Hospital. The radiology report indicated no radiographic evidence of malignancy. On January 17, 1996, the decedent saw the Ob/Gyn for her scheduled annual examination and the Ob/Gyn performed an examination of the decedent and noted no masses upon examination of the decedent’s breasts. The defendant Ob/Gyn diagnosed the decedent with benign fibrocystic disease and prescribed oral contraceptives to treat the swelling and tenderness.

In April 1996, the decedent called the Ob/Gyn again complaining of breast tenderness. The defendant Ob/Gyn referred the decedent to a surgeon for evaluation of her left breast. The surgeon agreed with the diagnosis and benign fibrocystic disease and suggested continuing oral contraceptives. A few months later, the decedent returned to the surgeon and was seen by an associate who was covering for the surgeon’s vacation. The covering surgeon ordered a biopsy leading to the diagnosis of breast cancer.

The defendants contended that all of the care provided by the defendants complied with the applicable standard of care, and that the Ob/Gyn and surgeon acted appropriately in managing the decedent’s breast complaints. The defendants further contended that even if the cancer had been detected and treated at an earlier stage, it would not have affected the outcome.

At diagnosis, the decedent had three distinct tumors in her left breast, the largest of which measured just over a centimeter in diameter. The defendants claimed that this suggested widespread inflammatory disease inconsistent with cure of long-term survival regardless of when diagnosis was made.

The decedent’s surviving spouse waived any right to recovery under the wrongful death statute given that he left his wife when she was diagnosed with cancer and was in the process of getting divorced at the time of her death. He has since remarried. All proceeds from the settlement will benefit the decedent’s three minor children.

Each side was prepared to call numerous expert witnesses in various medical specialties. The case was settled a few weeks before trial.

Attorneys for Lubin & Meyer represented the plaintiff in this lawsuit.

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