Metastatic Breast Cancer Settlement Is $1.75 Million for Delay in Diagnosis

2010 Medical Malpractice Trial Report

Failure to identify and report a mammogram abnormality and to recommend or perform further imaging and/or diagnostic studies

The plaintiff is a 59-year-old woman who had a previous diagnosis of breast cancer in 1993. The plaintiff was successfully treated for her cancer and remained cancer free for many years. As a result of her diagnosis, however, she was vigilant about breast cancer screening with mammography and had many years of clear films. In December of 2002, her mammography was interpreted by Defendant #1 to be free of any evidence of malignancy. Plaintiff’s expert reviewed these films and was prepared to opine that Defendant #1 failed to identify and report a coalescent density and calcifications in the 2-3 o’clock position of the plaintiff’s left breast and that he failed to recommend or perform further imaging and/or diagnostic studies to rule out cancer, such as spot compressions, magnification views, and ultrasound. Defendant #1 maintained that his interpretation was correct and identified an expert in support of that defense.

The following year, in October of 2003, Defendant #2 interpreted the plaintiff’s new mammography and found it to have a “stable” area of asymmetric density, which he did not think was new and did not report as being suspicious for malignancy. Plaintiff’s expert was prepared to opine that this was the same area that was suspicious in 2002 and that Defendant #2 likewise failed to identify and report it. No radiology expert on behalf of Defendant #2 was identified prior to settlement.

The plaintiff was diagnosed with recurrent breast cancer in August of 2004, approximately 20 months after Defendant #1’s interpretation of her mammography and approximately 10 months after Defendant #2’s interpretation. Plaintiff’s expert oncologist agreed that this was a recurrence of cancer and, therefore, that treatment for cure was not available, even with earlier (10-20 months) diagnosis because the cancer was already outside of the primary site (removed in 1993). However, plaintiff’s expert oncologist did opine that the delay of 10-20 months in treating this recurrence cost the plaintiff longer term survival since the cancer would have been treated at an earlier stage. The defendants’ oncology experts, however, indicated that the treatment and the outcome would have been the same even with earlier diagnosis because the plaintiff’s response to treatment would have been the same. Thus, the defense experts were prepared to testify that the plaintiff would only have known she had cancer longer, without any appreciable effect on her actual survival (so-called lead time bias). However, the plaintiff continues to battle her breast cancer to this day.

Lubin & Meyer attorneys represented the plaintiff in this lawsuit.

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