Confidential
Settlement – $250,000Court
Confidential
Attorneys
Plaintiff
Randy H. McMurray
(McMurray & Henriks LLP)
Defendant
Steven R. Anthony
(Knox Ricksen LLP)
Experts
Plaintiff
Jerome Sandler
(medical)
Lawrence P. White
(medical)
Defendant
Robert C. Lim
(medical)
Debasish Tripathy
(medical)
Facts
On October 30, 1991, the doctor, a staff surgeon at defendant hospital, conducted a physical examination on the plaintiff, a 51-year-old desk top publisher, which revealed an almond size mass in the plaintiff's left breast. The defendant doctor alleged that the examination revealed that the mass did not have characteristics of cancer. On January 14, 1992, the defendant doctor conducted an open examination (biopsy) of the mass. Upon entering the breast through a one inch incision, the doctor noted a capsule of scar tissue which had formed around the plaintiff's breast implant. Although the doctor could not see the mass or the implant through the scar tissue, he assumed that the mass was a peninsular projection or defect on the edge of the prosthesis contained inside the capsule of scar tissue. When the doctor palpitated the projection, it deflated and reinflated. The doctor did not attempt to biopsy the mass or the capsule surrounding the breast implant. The doctor sent all tissue to pathology which reported no abnormal findings. The operative report was unclear as to whether the mass had been biopsied. Sometime after July of 1993, the biopsy wound in the plaintiff's breast began to break down. The wound's failure to heal was thought to be a result of the plaintiff's breast implants. On November 11, 1993, a plastic surgeon removed the plaintiff's implants. During the operation, the doctor found a tumor at the biopsy site which had spread from the capsule into the outlying breast tissue, skeletal muscle, and skin. A biopsy was performed on the tissue and it was determined that the tumor was malignant. On November 10, 1993, pathology confirmed that the plaintiff had metastasized breast cancer in approximately the same location that the defendant doctor had investigated 18 months earlier. The plaintiff brought this action against the defendants based on medical negligence theories of recovery. The plaintiff's husband also brought a loss of consortium cause of action.
Settlement Discussions
The settlement discussions were not disclosed. The plaintiff settled for $250,000, plus medical care not to exceed $30,000 (per plaintiff), $25,000 (per defendant). The settlement included all present and future causes of action.
Specials in Evidence
$130,000 (approximately) not to exceed $30,000
Damages
The plaintiff claimed non-economic, pain and suffering damages in the amount of $250,000.
Injuries
The plaintiff alleged that she suffered metastasized breast cancer requiring chemotherapy and a bone marrow transplant as a result of the defendants' medical negligence.
Other Information
The case was settled without having been filed as the claim was subject to binding arbitration. The claim was mediated on December 19, 1995, before the Hon. Alan W. Haverty (retired judge) of J.A.M.S./Endispute. The plaintiff has had a recurrence of cancer and has a life expectancy of less than three months.
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