Delay in Diagnosis of Melanoma: Wrongful Death Settlement $1 Million

2010 Medical Malpractice Trial Report

Lawsuit charges delay in diagnosis of malignant melanoma

The decedent was a 55-year-old man with a history of multiple basal cell carcinomas of the chest and back. He was being followed by the defendant dermatologist for routine evaluations.

On August 7, 2001, the decedent saw the defendant for one of his annual skin checks related to his basal cell carcinomas. A 0.5 cm red nodule with an inferior black edge was discovered on his mid-left upper back. This dermal nevus was excised to rule out melanoma. According to his records, the defendant made an incision encompassing the lesion plus 2mm of normal skin. Dissection was carried to the level of the subcutaneous tissue and the specimen removed. The size of the lesion was 1.0cm. The pathology report reflected that the defendant interpreted the specimen as revealing excised skin from the back, which was an intradermal melanocytic nevus. On August 14, 2001, the defendant then sent the specimen for a second opinion to a physician at American West Skin Pathology in California.

On August 23, 2001, the physician at American West Skin Pathology, reported that the excised specimen from August 7, 2001 revealed a focally melanized compound nevus with a prominent spindle cell component, but without significant mitotic activity. The tumor involved one peripheral and one deep margin of several sections. The physician went on to recommend a complete excision of the tumor site (3mm margin), to include reticular dermis, followed by careful histologic and cytologic analysis in order to make a definitive diagnosis. The consulting physician was unable to rule out melanoma as a diagnosis without further testing.

On September 21, 2001, the decedent returned for another excision. The defendant noted that the decedent had a pink scar without evidence of pigment. Pursuant to the consult’s recommendation this area was re-excised through the full thickness of the dermis into the fat although the note does not reflect that 3mm margins were obtained. The pathology report from this specimen dated September 27, 2001, stated the final diagnosis was scar tissue only. There is no documentation anywhere in the record that this excision included clear margins, nor that careful histologic and cytologic analysis was done as recommended by the physician at American West Skin Pathology in order to make a definitive diagnosis and, more importantly, to rule out melanoma.

One year later, on September 20, 2002, the decedent returned to the defendant for his annual check-up. The defendant noted a 1.0cm multi-nodular papule on the decedent’s back at the same site which had been biopsied in August 2001. The specimen was excised on September 20, 2002, and received in the lab on September 27, 2002. The reported diagnosis questioned a melanoma. It was then sent to another physician for a second opinion also on September 27, 2002. On October 2, 2002, the defendant received a consultation report regarding the biopsy. The consultation reported a diagnosis of severely atypical dermoepidermal melanocytic proliferation with the lesion extending to both lateral margins and to the deep margin of the specimen. The defendant referred the plaintiff’s decedent to another physician for wide excision and possible sentinel lymph node biopsy. The excision and node biopsy were done on October 30, 2002. Microscopic diagnosis of the excision and biopsy showed multiple foci of recurrent malignant melanoma in the upper dermis. The cluster of 3 axillary lymph nodes (sentinel node) showed multiple foci of metastatic malignant melanoma. The decedent surgery which revealed a stage IIIA melanoma with three sentinel lymph nodes with deposits of metastatic melanoma. Despite aggressive treatment the plaintiff’s decedent died on March 20, 2009 at the age of 63.

Trial in this matter was scheduled for February 2010. The defendant was prepared to testify that a total excision of the lesion had been achieved during the initial biopsy in 2001 and this was confirmed during the re-excision when only scar tissue with clear margins were obtained. The defendant and his experts were prepared to testify that the cancer had metastasized prior to 2001 and that diagnosis and treatment in 2001 would not have affected the decedent’s outcome.

The case settled for One Million Dollars in the week prior to trial.

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

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