|Gorovitz & Borten, P.C.
Attorneys at Law
550 Cochituate Road, Suite 25
Tel: (781) 890-9095
|Failure to Diagnose
The Plaintiff’s decedent had been seeing her OB/GYN physician
for several years. At age 37, the Defendant gynecologist referred
her to Defendant radiologist #1 for a diagnosis of “lumpy breasts”.
A mammogram was performed by Defendant radiologist #1 and he
opined that there was the appearance of microcalcifications and
recommended a 6 month follow-up mammogram, but no other
studies or biopsy. In February 2000, Plaintiff’s decedent saw
Defendant radiologist #2 for a repeat unilateral mammogram.
Defendant radiologist #2 opined that there was no change in the
microcalcifications and recommended a second 6 month follow-up,
but no other studies or biopsy.
Plaintiff’s decedent returned to the Defendant gynecologist in July
2000 and she was prescribed medication at the time to assist her
in becoming pregnant with her second child. Over the course of
the next 16 months, the Defendant gynecologist saw this patient no
less than 17 times, both during her pregnancy and afterwards.
However, none of the medical records for these 17 visits indicate
that he ever performed a breast examination on this patient, nor
was there any radiographic follow-up.
In December 2001, the Plaintiff’s decedent complained to the
Defendant gynecologist’s practice of a walnut sized lump in the left
breast that had previously been the breast that had shown
microcalcifications. By February 2002 the Plaintiff’s decedent was
diagnosed with breast cancer, Stage IV with metastasis, in the left
breast in the same area which contained the microcalcifications.
The patient died in February 2004, at the age of 41, leaving a
husband and two young daughters.
Plaintiff’s expert in radiology was prepared to testify that Defendant
radiologist #1 breached the standard of care by failing to request
magnification studies and true lateral views in order to make a
referral for further assessment, since his examination was a
baseline study without the ability to compare to other studies.
Plaintiff’s expert was further prepared to testify that Defendant
radiologist #1 deviated from the standard of care by not ordering
an ultrasound guided biopsy of the microcalcifications.
With regard to Defendant radiologist #2, Plaintiff’s expert was
prepared to testify that the microcalcifications were still present on
the second mammogram and, although unchanged, the
calcifications did not have a benign appearance. Further, the
expert would testify that there was a suggestion of soft tissue
density associated with the microcalcifications, and that it was
difficult to assess for interval change since the previous study was
baseline only. As such, the microcalcifications would be
considered indeterminate, if not suspicious. It was a deviation of
the accepted standard of care to have recommended a 6 month
followup mammogram only, and not to have recommended a
biopsy of the area on the left breast showing microcalcifications.
With regard to the Defendant gynecologist, the Plaintiff’s expert
gynecologist was prepared to testify that he should have followed
up on the patient’s condition, but failed to do so. Further, Plaintiff’
s expert was prepared to testify that in assisting the patient to
become pregnant, the gynecologist was clearly aware of the
hormonal implication of pregnancy and breast cancer. It was a
deviation of the standard of care not to perform further examination
before assisting the patient in becoming pregnant.
Finally, Plaintiff’s expert was prepared to testify that not examining
this patient’s breasts on not less than 17 separate office
encounters, both prior to and during her pregnancy and thereafter,
was a clear deviation from the acceptable standard of care of a
gynecologist. The failure of this gynecologist to perform in
accordance with the standard of care resulted in a significant delay
in diagnosis of the breast cancer, and the unnecessary
preventable fatal outcome that occurred.
Following discovery, but well in advance of the Pretrial Conference,
the parties agreed to mediation with Attorney John Fitzgerald.
With the constructive participation of the case managers for the
liability insurance companies, the case settled against the
Defendant gynecologist for a lump sum payment of $1,800,000.00,
and against Defendant Radiologist #1 for $250,000.00, a total of
$2,050,000.00. The surviving husband/father of the minor children
elected to take a structured settlement, and the guaranteed
payment under the structured settlement is: $4,792.000.00.
Defendant Radiologist #2 has refused to participate in the
settlement, and the case is proceeding to trial against that
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