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Continued From Page 6 to be concerned about the lumps during her fourth pregnancy and continued to raise the problem during her visits to the obstetrician as the mass grew and the doctor continued to record “WNL” in the medical record. Unsatisfied with the physician's explanation, in September of 1996, almost two years after she initially reported the concerning finding, Carolyn scheduled her own mammogram, which led to a biopsy. The diagnosis was focal ductal carcinoma, measuring 6x6x3.8 cm with 12 of 18 nodes positive, classified as Stage IIIA. Carolyn had surgery, radiation, chemotherapy and a stem cell transplant. Among the interesting legal issues in the case was the fact that Carolyn had survived the delay in diagnosis but had a poor long-term prognosis. The defendant was concerned about settling the personal injury claim and then being faced with a wrongful death claim by Carolyn's heirs if she later died. The issue was whether Carolyn could release a claimÐthe potential wrongful death claimÐwhich had not yet accrued? It appears to be a |
grey area of the law, however, settlement paperwork was completed which ultimately satisfied the defendant and the case was settled for $1,800,000. In another recently concluded failure to diagnose breast cancer case, Lynn Johnson and John Parisi represented Patti (last name withheld) a 44-year-old single mother of three in a personal injury claim which tragically became a wrongful death case after Patti's death from cancer. In October of 1995, Patty discovered a painful, palpable lump in her right breast and scheduled an appointment with an obstetrician at a Kansas City area clinic. The breast exam was conducted with Patti in a seated position. The obstetrician determined everything was within normal limits and did not make any further recommendations. Standard of care required the patient be in a supine position for the examination of the breast. Not surprisingly, it was discovered that the obstetrician had failed his medical licensure exam eleven consecutive times in two different states before achieving the minimum passing score. He then failed the obstetrics and gynecology board |
certification exam twice and became ineligible for certification. Since receiving his medical license, the obstetrician has been sued ten times for malpractice, three involving the deaths of patients, and no case against him had ever been resolved in his favor. Unsatisfied with the obstetrician's explanation, Patti obtained a mammogram two weeks later which was read by the radiologist as normal. PlaintiffÕs evidence was that the mammogram showed a palpable mass with obvious asymmetry and irregular borders that should have been considered abnormal until further testing ruled it out. Patti then sought a second opinion from a gynecologist who made a diagnosis of fibroids. Reassured by the two physicians that everything was normal she went on with her life. On December 6, 1996, fifteen months after the first exam by the obstetrician, Patti began to have symptoms and had a bilateral mammogram which was markedly abnormal, diagnosed on biopsy as invasive ductal carcinoma, poorly differentiated, grade III. Patti's cancer progressed relentlessly despite treatment and she died on March 21, 1999. Patti had a minimal lost wages claim and modest past medical expenses. The case was settled with all three physician contributing for $900,000, a large portion of which constituted “Wentling” damages under Kansas Law. (See our past newsletter articles on “Wentling” damages). |
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