Failure to Diagnose and Treat Lung Cancer: $1.5M Settlement

2003 Medical Malpractice Settlement Report

In 1987, the decedent was diagnosed with breast cancer. She underwent chemotherapy and radiation and was under the care and treatment of the 2 defendant oncologists in this case. By all reports and medical records in the case, the decedent did well in her fight against breast cancer. In July of 1991, the decedent underwent a CT scan to evaluate a chest wall lump that had developed. It was determined that this was a benign lump, probably the result of the radiation therapy she had received years earlier for her breast cancer.

See a more recent case of missed cancer:
Missed Lung Cancer Lawsuit Settles for $900,000

Missed cancer xray photoA missed cancer case is often referred to as a "failure to diagnose" or a "delay in diagnosis" of cancer, and is one of the most common reasons patients file a medical malpractice lawsuit.

See more: Delay in diagosis / missed cancer verdicts and settlements.

However, at the time the CT scan was performed, there was also noted to be a small, less than one-centimeter abnormality in the lower, right lobe of her lung. In November of 1991, the decedent underwent a second CT scan, which confirmed that she still had a mass in the right, lower lobe of her lung and the radiologist reported that it had increased in size from the July CT scan. The radiologist further advised that this mass should be followed.

Several days after the November CT scan, both defendants received a letter from a surgeon indicating that the nodule was present and that follow-up was required. In the letter, the surgeon indicated that he had spoken with Defendant #1. The letter indicated that the defendants would follow-up on the abnormality. Defendant #1 never did any follow-up and never spoke with the decedent about the finding of the nodule.

At the request of Defendant #2, the decedent had a third CT scan in April 1992. The abnormality was still present on her lung but it was reported as essentially unchanged from November of 1991. Despite the presence of an abnormality in the decedent’s lung, which had persisted for almost 1 year, Defendant #2 did not further testing on her lung. Further, at no point in time did Defendant #2 ever speak to the decedent about the mass on her lung. The decedent continued from 1992 through 1996 treating with Defendant #2. She saw Defendant #2 several times every year. At no point in time did Defendant #2 ever follow-up on the abnormality in the decedent’s lung.

In August of 1996, in preparation for knee surgery, the decedent underwent a pre-operative chest x-ray. This chest x-ray revealed a 2.5 by 5 centimeter mass in the lower, right lobe. The area of cancer was determined to be the same area where the abnormality was noted in 1991 and 1992. The decedent underwent radiation, chemotherapy and removal of her lung (known as a pnuemonectomy). Unfortunately, the treatment was not sufficient to stop the spread of the cancer to other parts of the decedent’s body and she died of metastatic lung cancer in August 1991 at 61 years of age.

The defendants were prepared to argue that the nodule, which was seen in 1991 and 1992 on the CT scan, was not cancer. It was the defendants’ position that the nodule did not grow between 1991 and 1992, thereby proving that it was not cancer. The defendants were prepared to testify that cancer will continuously grow and a stoppage in the growth of a nodule effectively ruled out cancer.

The defendant’s were further prepared to testify that the cancer found in 1996 was more probably a spread of the decedent’s breast cancer instead of a new lung cancer. The defendants were expected to testify that if the cancer was a spread of her breast cancer, the decedent was not going to survive regardless of when the cancer was diagnosed.

Three days before the expected commencement of the trial in this matter, the case was settled for $1,500,000.

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

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