$1,900,000 Traumatic Injury


Traumatic Injury

Personal Injuries: Medical malpractice resulting from failure to diagnose and treat breast cancer causing metastatic disease and shortened life expectancy; loss of consortium.

Amount of Settlement: $1,900,000.00

Date of Settlement: Settled at mediation three weeks before trial

Plaintiffs’ Lawyers: Attorney Marc L. Breakstone and Attorney David W. White Boston, Massachusetts

Mediator: Peter Contuzzi, Esquire

Court: Suffolk Superior Court

Other Useful Information

Plaintiff was 45 years old in August, 1992 when she saw her primary care physician, an internist, for an annual physical examination. The internist ordered a screening mammogram which revealed an abnormality in the right breast. A follow-up compression mammogram demonstrated a mass in the upper inner quadrant of the right breast which was reported “highly suspicious for carcinoma”. The radiologists recommended needle localization and removal of this mass.

In October, 1992, plaintiff’s internist referred her to a surgeon in the same group practice. At the first visit, the surgeon palpated a thickened area in the upper inner aspect of the right breast. He decided to perform the biopsy without needle localization. On November 2, 1992, the surgeon mistakenly removed tissue from the upper outer aspect of the right breast. The pathology report was negative for carcinoma. In the first post-operative visit, the surgeon dismissed the plaintiff’s concerns about the location of the incision (outer vs. inner), and told her the remaining lump in the inner breast was either scar tissue or hematoma. The surgeon failed to order further testing or mammograms which would have revealed that the suspicious mass had not been removed.

Approximately six months after the biopsy, plaintiff saw her internist and received a prescription for estrogen and progesterone for menopausal symptoms. Prior to prescribing these medications, the internist performed no physical examination. The package inserts for the two medications instruct the prescribing physician to perform a physical examination with particular attention to the breasts before prescribing the medication. The inserts also instruct that the medications are contraindicated in patients with known or suspected breast cancer.

Plaintiff returned to her internist for an annual physical examination in November, 1993. She informed him that the lump in her right breast, which was palpable since the biopsy and about which the surgeon told her not to worry, felt as if it had grown. The internist immediately ordered mammograms which revealed that the mass in the upper inner right breast had grown to over 5 centimeters in diameter. The internist sent plaintiff back to the surgeon who excised the mass in November, 1993. The pathological diagnosis was poorly differentiated infiltrating ductal carcinoma. Further tests in December, 1993, revealed that the cancer had metastasized into plaintiff’s liver. The plaintiff was diagnosed with Stage IV cancer which is terminal. As of the date of the diagnosis, the 47 year old plaintiff had a median life expectancy of 18 to 24 months.

Shortly thereafter, at counsel’s urging, plaintiff obtained her complete medical records directly from the group practice. Three weeks later, plaintiff’s counsel received a copy of the plaintiff’s records pursuant to a written request. The second set of records contained a number of significant changes in the surgeons first two office notes with regard to the location in the breast of the palpable abnormality. The original records stated the abnormality was in the upper inner breast. The altered records indicated the thickened area was in the upper outer breast.

Plaintiff brought claims against the surgeon, the internist, and the medical center which employed them. Claims were also brought on behalf of the husband and the two children, one of whom was a minor, for loss of consortium. The consortium claims on behalf of the adult child were dismissed on defendants’ motion for summary judgment.

At his deposition in June, 1994, the surgeon admitted that he had altered plaintiff’s records after and as a result of receiving a letter from her attorneys. Shortly thereafter, the defendant, surgeon filed an amended answer to the complaint in which he admitted he was negligent in failing to remove the correct mass from the plaintiff’s breast. Defendant intended, however, to contest the issue of whether his negligence had caused damages to the plaintiff. The defendants maintained that plaintiff probably had metastatic disease as early as Fall, 1992, based upon the size of her liver tumors in December, 1993.

Plaintiffs’ experts were prepared to testify that, when she presented in Fall, 1992, plaintiff probably had Stage I breast cancer, with a mass less than 2 centimeters and no positive axillary nodes. They were further prepared to testify that during the approximately one year delay, the cancer grew and spread systemically, and that plaintiff’s life expectancy, measured from the date of her diagnosis, was approximately 18 to 24 months. They were also prepared to testify that if treated in 1992, the plaintiff would likely have been cured of the cancer. The experts were also prepared to testify that the prescription of estrogen and progesterone without an examination of the breasts was poor medical practice and that the administration of these hormones hastened the growth and spread of the disease.

Plaintiff was employed as a special education teacher in the public schools, earning approximately $35,000 per year. She had attained her master’s degree when she was 43 years old. Plaintiffs intended to call her supervising principal who would have testified regarding her excellent professional qualifications and performance. Plaintiffs were also prepared to call an economist who would have testified that the present value of plaintiff’s earning capacity was approximately $500,000.00.

The trial had been scheduled for March 6, 1995, after a motion for speedy trial was allowed. The parties agreed to pre-trial mediation in January 1995. This personal injury medical malpractice case settled shortly after the conclusion of the all day mediation conducted by Peter Contuzzi, Esq.

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