Confidential

Facts

Decedent, then age 36, was in the 22nd week of her first pregnancy when she discovered a lump in her right breast on self-examination. She brought this to the attention of her OB on Aug. 28, 2003 and insisted on a referral to a general surgeon.

Decedent was seen by Roe, a general surgeon, on Sep. 3, 2003. Roe charted a "large right beast lump." He further charted that she should "follow up after delivery of baby-mammogram-ultrasound."

The baby was delivered on Dec. 24, 2003. On Dec. 26, 2003, decedent underwent an ultrasound-guided aspiration of the right breast. More than 250 ccs of serosanguinious fluid was removed. The plaintiffs contended that this was incorrectly assessed by the cytologist as negative for malignancy.

The decedent returned to see Roe surgeon on Jan. 28, 2004, Feb. 18, 2004, and March 3, 2004. On each occasion, Roe aspirated more than 250 ccs of fluid from the right breast and dumped the aspirate down the sink.

On March 16, 2004, Roe performed a biopsy on the breast mass. Clinically, the lesion was 7 cm in size. Histology revealed a high-grade infiltrating ductal carcinoma. She was assessed as having Stage III-B breast cancer.

The decedent underwent neoadjuvant chemotherapy with Adriamycin/Cytoxan/Taxol and on Sep. 23, 2004 underwent a right modified radical mastectomy. Pathology revealed the presence of a residual 6 cm primary with a metastatic axillary node measuring .4 cm in size. She underwent additional chemotherapy on March 2005. Metastases were noted to the chest wall, lungs, and spine.

PLAINTIFFSÆ CONTENTIONS:
The standard of care required that Roe defendant perform a mammogram and ultrasound immediately following the Sep. 3, 2003 surgical consult and follow that with a biopsy. This would have revealed the presence of the malignancy at that time. She was likely at an earlier curable stage.

DEFENDANTÆS CONTENTIONS:
Roe defendant testified at deposition that he did, in fact, advise the decedent that she needed to undergo a mammogram and ultrasound on Sep. 3, 2003 but that the decedent declined due to concerns for radiation damage to the fetus. This was not charted by Roe defendant.

Injuries

Death of a 38 year old wife/mother who was earning $50,000 annually at the time of her diagnosis. The present value of past and future economic daamges was assessed by the plaintiff's forensic economist at $1,314,666.

Result

Settlement: $1,000,000 (policy limit).

Other Information

This case was originally filed on May 27, 2005. Decedent succumbed on Oct. 11, 2005, one month before the date of the specially-set trial. The complaint was amended to a wrongful death case.