Facts

Plaintiff Patricia Sumi initially presented to defendant Dr. John West at The Breast Care Center on June 12, 1998, as a result of a referral from her treating OB/GYN, Dr. Feldman, in connection with a suspicious lump at the 1:00 position in the plaintiff's right breast. Dr. West examined the plaintiff on this date, reviewed pertinent mammography studies, and aspirated a simple cyst at the 1:00 position in the plaintiff's right breast. Plaintiff was instructed to return for follow up visits at two, four, and six month intervals. Plaintiff failed to return to see Dr. West until six months later, on Dec. 24, 1998. She was not experiencing any problems at that time and was therefore instructed to follow up in May 1999.

A repeat mammogram was performed on Oct. 12, 2000 at the direction of the plaintiff's treating OB/GYN, Dr. Feldman and demonstrated abnormal findings at the 8:00 position in the plaintiff's right breast. Dr. Feldman appreciated a palpable lump in the patient's right breast at approximately the 8:00 position during this time, as well. Plaintiff was therefore referred back to Dr. West in connection with this suspicious mass. On Nov. 9, 2000, Dr. West aspirated a simple cyst at the 8:00 position of the plaintiff's right breast with the assistance of ultrasonography. There was a dispute in testimony as to whether or not this aspiration procedure was successful, with plaintiff alleging that the aspiration procedure was not successful and that the lump never went away. Plaintiff was instructed to follow up at six-month intervals following this Nov. 9, 2000 office visit.

On March 15, 2001, the plaintiff returned to see her OB/GYN, Dr. Feldman, in connection with ongoing complaints regarding a lump in the lateral aspect of her right breast. Dr. Feldman examined plaintiff on March 15 and appreciated a 2 millimeter, soft nodular mass at the 9:00 position of the patient's right breast. A referral was therefore made to Dr. West, and the patient saw Dr. West one week later, on March 22, 2001. Dr. West contended that he could find no mass during this March 22, 2001 examination and took exemplar views of the right breast, using ultrasonography for this process. Plaintiff was instructed to follow up with Dr. West in October 2001. Dr West assured plaintiff there was no mass present in the right breast at this time and that there was nothing to worry about.

Plaintiff returned to Dr. West's office one month later, on April 26, 2001, again complaining of a breast lump at the 9:00 position of the right breast. Dr. West examined plaintiff and contended that upon further questioning plaintiff indicated that she did not actually appreciate a lump in the right breast, but that rather, there was tenderness in the right breast at approximately the 10:00 position. Plaintiff further contended that Dr. West conducted a very cursory examination during this visit and again insisted that there was nothing wrong with plaintiff's right breast. Dr. West again took exemplary photos of the area of concern using an in-office ultrasound machine.

Plaintiff switched medical insurance coverage approximately one year later and never returned to see Dr. West following this April 26, 2001 office visit. Approximately one year later, on May 21, 2002, plaintiff was referred to Dr. William Davis, a surgeon associated with her new medical insurance policy at which time Dr. Davis performed a core biopsy on a lump in the patient's right breast at the same position in the breast which plaintiff had complained to Dr. West about during both her March and April, 1001 visits. The core biopsy performed by Dr. Davis on May 21, 2002, demonstrated the presence of a poorly differentiated, invasive ductal carcinoma. A lumpectomy was subsequently performed on the patient by Dr. Davis on June 6, 2002; however this lumpectomy was not completely successful as the margins were not clear of tumor. The tumor was estimated at 5 centimeter in diameter at that time. Subsequent pathology interpretations of the tumor demonstrated the presence of a mixed tumor, involving both poorly differentiated, invasive ductal carcinoma, with further findings of the tumor having lobular cancer components. CT, bone and PET scans unfortunately demonstrated that as of June 2002, plaintiff's breast cancer had metastasized to multiple areas, including the thoracic and lumbar spine, the lungs and the pelvis. Plaintiff thereafter underwent multiple rounds of both chemotherapy and radiation therapy, which were ongoing up through and including the time of trial. By the time of trial, there was further evidence of metastases to the skull and brain, as well as to the liver. The prognosis at the time of trial was that plaintiff Sumi would probably pass away within the ensuing six to 12-month time frame.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that the lump in her right breast that was aspirated on Nov. 9, 2000 by Dr. West never went away and that ultimately this same area proved positive for breast cancer and that as a result of the failed diagnosis by Dr. West, she was terminally ill. Plaintiff further contended that had Dr. West diagnosed the patient effective April 2001, there would have been fewer than thee nodes dissected and that she would have had a better than 50 percent chance of long term survival.

DEFENDANTS' CONTENTIONS:
Defendant contended that he met the applicable standard of care in connection with all treatment he provided to plaintiff. Dr. West further contended that he completely and successfully aspirated the simple cyst on Nov. 9, 2000, and that both physical examination and ultrasound examination of the patient demonstrated there was no palpable mass in the right breast during the March or April 2001 examinations of the patient.

Defendant further contended that the primary tumor was a luminal B type of lobular carcinoma and that even had the plaintiff been diagnosed effective April 2001, she would have had greater than eight to nine positive nodes dissected at that time, with extensive metastases being present, as well. Defendant further contended that based upon these findings, there would have been no different outcome or prognosis for plaintiff, even had a diagnosis been made in April 2001.

Result

Defense verdict.

Other Information

EXPERT TESTIMONY: Plaintiff's oncology expert, Dr. Georgia Spaulding Edwards, testified that had plaintiff's cancer been diagnosed in April 2001, plaintiff would have had a better than 50 percent chance of survival and that there would have been a localized tumor, only, without any metastases. She further testified that the applicable standard of care mandated that Dr. West perform additional testing modalities in both March and April 2001, including, but not limited to the performance of a blind biopsy at the site of plaintiff's complaints in or about the 9:00 or 10:00 position of the right breast. Plaintiff's designated surgical oncology expert, Dr. Frederick Dirbas, also opined that the applicable standard of care mandated a blind biopsy be offered to the patient no later than April 2001, and that the patient should have been referred for an outside ultrasound study, effective March 2001. Defendants' radiology expert, Dr. Lisa Kantrowitz testified that there was no radiographic evidence of ductal carcinoma in either the Oct. 12, 2000 mammogram studies or in subsequent mammograms of the patient taken in March 2002. She further testified that a review of Dr. West's in-office ultrasound studies failed to demonstrate the presence of any ductal carcinoma, as well. Defendants' oncology expert, Dr. John Link, testified that the primary nature of this tumor was of a luminal B type lobular carcinoma and that such carcinoma is virtually invisible on mammography and ultrasound studies. He further testified that even had the patient been diagnosed in April 2001, there would have been metastatic disease present at that time, and there would have been no different outcome. Defendants' pathology expert, Dr. Lowell Rogers, testified that the primary nature of the breast tumor was luminal B type lobular carcinoma and that even had surgery been undertaken effective April 2001 to address the tumor, there would have been eight to nine positive notes at that time, with extensive metastatic disease being present, as well. Defendants' surgery expert, Dr. Howard Newman testified that the standard of care was met by Dr. West at all times and that there was no need to do any type of blind biopsy, as urged by plaintiff's experts. FILING DATE: May 6, 2003.

Deliberation

2.5 hours

Poll

10-2

Length

12 days