$500,000 Recovery in NY Medical Malpractice Death Case

Medical Malpractice - Failure to Diagnose

During trial, Jason Rubin reached a $500,000 settlement in a medical malpractice case involving the failure to timely diagnose breast cancer in a 39 year old woman.

Plaintiff consulted with a breast surgeon for a small lump in her left breast and the surgeon performed a procedure known as a fine needle aspiration (FNA), a relatively non-invasive procedure wherein a thin needle was inserted into the breast and tissue was extracted for analysis by a pathologist. The pathologist interpreted the FNA as being negative for malignancy. Notwithstanding the apparently negative aspiration, the breast surgeon recommended an excisional biopsy- a surgical procedure wherein the entire lump is removed and analyzed. Plaintiff was apprehensive about having the excisional biopsy and therefore sought a second opinion from a second breast surgeon, who did not recommend an excisional biopsy but, rather, recommended that plaintiff return to in 4-6 months to determine if the lump remained stable. This advice was based upon the fact that plaintiff's mammogram and ultrasound studies were both negative, the fine needle aspiration study was apparently negative, plaintiff's breast lump was consistent with benign fibrocystic changes and she had no significant risk factors for development of breast cancer. Relying on the advice of the second breast surgeon and the apparently benign fine needle aspiration, plaintiff did not undergo an excisional biopsy at that time. Instead, she returned for a follow-up appointment to the second breast surgeon six months later. At this appointment, the surgeon noted suspicious changes in plaintiff's breast and performed a mammogram, ultrasound and core needle biopsy. This tests indicated that plaintiff had breast cancer. She underwent neoadjuvant chemotherapy, mastectomy and radiation therapy. Following her mastectomy, she was determined to have Stage IIIC breast cancer by virtue of having metastasis to 26 of 29 lymph nodes.

Jason claimed at trial that the fine needle aspiration performed by the first breast surgeon was not negative but, in fact, demonstrated the presence of atypical (abnormal) cells which should have been reported by the pathologist. If properly reported as atypical, plaintiff would have undergone an excisional biopsy six months earlier and the cancer would have been diagnosed. Jason claimed that if diagnosed six months earlier, fewer lymph nodes would have been involved and plaintiff's cancer would have been a stage IIB rather than IIIC, and that her 10 year statistical survival would be 80% rather than 50%.

Jason was able to obtain this result despite the fact that plaintiff's treatment (i.e. chemotherapy, mastectomy & radiation) would have been necessary even if the cancer were timely diagnosed six months earlier. Additionally, after more than six years since her diagnosis, plaintiff has not suffered a recurrence of her breast cancer.

This case demonstrates how Wingate, Russotti, Shapiro & Halperin, LLP utilizes cutting edge technology to present evidence in Court. Jason had the FNA slides digitized so that the pathology could be presented on a large screen in high resolution with the ability to zoom in and out just like a microscope. Using this technology, Jason was able to compellingly demonstrate to the jury that the pathology slides did, in fact, contain atypical cells which should have been reported by the pathologist.

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