Confidential
Settlement – $300,000Judge
Court
L.A. Superior Van Nuys
Attorneys
Plaintiff
Defendant
Mark V. Franzen
(Carroll, Kelly, Trotter, Franzen, McBride & Peabody)
Respondent
Experts
Plaintiff
Richard Witten
(medical)
Robert Leibowitz
(medical)
Raymond G. Schultz
(technical)
Robert Lowery
(medical)
Kevin Kelly
(medical)
John S. Wilson
(medical)
Defendant
Michael Peters
(Ramo Law, PC)
(medical)
David B. Sievers
(medical)
Thompson Adams
(medical)
David J. Weiner M.B.A., AM
(technical)
John R. Hesselink M.D.
(medical)
Llorens Pembrook
(medical)
Facts
On Dec. 15, 1996, the plaintiff, a 40-year-old mother of three minor children, noticed a grape-size lump on the lower, inner quadrant of her right breast. She brought this to the attention of her husband. Her husband called the office of her internist the next morning and set an appointment for Monday Dec. 16. The plaintiff alleged that the physician palpated the lump and ordered a mammogram. The internist denied knowing anything about a lump and alleged that he performed a routine examination on the plaintiff and found no masses in the breasts. He merely ordered a routine screening mammogram. His note said no masses and that he was ordering a mammogram. The plaintiff presented to Northridge Hospital on Dec. 18 for the mammogram. The technologist recorded that the plaintiff had a lump in the right breast which had been present for two days and had been found by her physician. The technologist palpated the lump and diagramed its location at approximately 4 o'clock on the right breast. The mammogram performed was a "diagnostic" rather than a "screening" mammogram. Additional views of the right breast were obtained, and a skin marker was placed in the area where the lump had been palpated. (While the internist had claimed to have no knowledge of any lump on Dec. 16, the documentation for the mammogram indicated to the contrary and that the technologist had palpated the lump.) The radiologist who interpreted the mammogram reported no evidence of cancer. The report which went to the internist did say that the reason for the mammogram was a lump on the right. The internist felt the report of the mammogram indicated it was negative and, because he had examined the plaintiff two days before, did nothing when he saw that the mammogram had been performed for a lump on the right. The office advised the patient over the phone that the mammogram was normal and she should follow up in nine months. The plaintiff continued to be worried about the lump and had her husband call the doctor several weeks later. While there was no note of such a call on the chart, the husband claimed he had told the internist that his wife was still worried about the lump and wanted it removed. He claimed the internist advised that this was a "milk lump" and would shrink and go away in approximately nine months and there was nothing to worry about. The doctor denied making such statements, but did admit that the husband had called him wanting some clarification of the mammogram results. The internist alleged that he told the husband the mammogram was negative, and the plaintiff should follow up in nine months. After that conversation with the doctor, the husband and wife believed that the lump was a milk lump, would eventually go away and was nothing to worry about. The plaintiff saw the doctor in April 1997 for a yeast infection and then again in May 1997 for a yeast infection. After the latter visit, the internist referred the patient to a gynecologist for the yeast infection. The patient saw the gynecologist on May 19, 1997. The patient testified that, at the end of that visit, she mentioned to the gynecologist that she had a lump. The plaintiff alleged that the gynecologist palpated the lump and recommended that she see a surgeon. The gynecologist had no note about this and had no recollection of the visit. Her notes only made reference to a yeast infection. The gynecologist claimed that her routine would be perform a breast examination and she must not have found anything. The husband claimed that he then called the internist's office and gave them the information that the gynecologist thought she should see a surgeon. The doctor's office had a note that the plaintiff had breast pain and breast enlargement and the internist wanted an urgent referral to a surgeon. *** (FOR CONTINUATION OF FACTS)
Settlement Discussions
The plaintiffs made a C.C.P. º998 settlement demand for $600,000. The defendant radiologist made a C.C.P. º998 offer of compromise for $100,000. No offer from defendant internist.
Specials in Evidence
$200,000 (covered by insurance) $300,000
Result
*** (CONTINUATION OF FACTS) The doctor's office had no information about the gynecologist recommending this surgical consult. The call to the doctor's office was recorded to be June 5. The referral was not approved until June 18. The husband claimed he immediately called the surgeon's office and July 10 was the earliest appointment he could get. The surgeon found a firm area in the same location of the right breast and a repeat mammogram was performed. It had shown some increase in microcalcifications and cone compression views were done on July 17. A biopsy was recommended, and it was performed on Aug. 1. It showed intraductal adenocarcinoma of the breast. The plaintiff went to The Breast Center in Van Nuys and she was found to have a 9 c.m. mass in the right breast. A liver scan showed a 5 c.m. lesion in the liver, in addition to other smaller lessions. A liver biopsy confirmed metastatic disease of the liver. A decision was made to give the plaintiff chemotherapy to try to shrink the tumors. When the tumors were shrunk, a mastectomy was performed in November 1997. The plaintiff was found to have 16 positive lymph nodes. The plaintiff was given a stem cell transplant and high dose chemotherapy at Cedars-Sinai Comprehensive Cancer Center. There was a recurrence of the cancer at the chest wall, and the plaintiff was radiated. The plaintiff's liver cancer persisted and a liver resection was done to try to remove the liver cancer. The plaintiff was later found to have a recurrence of the liver cancer and a probable bony metastasis of the hip. As of August 1998, the plaintiff is still on chemotherapy with a life expectancy of only months. The plaintiffs brought this action against the defendants based on a medical negligence theory of recovery.
Other Information
The settlement was reached approximately six months after the case was filed.
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