Failure to Diagnose Biliary Tract Cancer

Kathleen Kettles recently settled a very difficult medical malpractice case involving the death of a 62-year-old woman.

She had routine gallbladder surgery in 1997 at a Long Island hospital. Unbeknownst to her or the surgeon, the pathologist at the hospital failed to properly identify cancerous changes to the gallbladder in the specimens sent from the surgery. Fourteen months later her skin turned yellow (jaundice), and cancer was found in the liver. Despite surgery to remove portions of the biliary tract and the liver and multiple courses of chemotherapy, she died in June of 2000. The defense was adamant that a diagnosis of gallbladder cancer was a statistical death sentence since it is almost always an aggressive disease which responds poorly to treatment. However, Kathy was able to convince the defendants that, in fact, it could not be established whether this was a gallbladder cancer or a primary biliary tract cancer because at the time of diagnosis the cancer had spread and the findings in the gallbladder may have come from the biliary tract. Primary biliary cancer has a much better prognosis. Further, even if it was primary gallbladder cancer and had spread to the liver bed, it would have been resectable at a much earlier stage, giving this wonderful woman a much better chance at survival. After analyzing the records, the medical literature, interviewing a prior treating physician, conducting multiple depositions in Florida and New York, and consulting with two pathologists and a surgical oncologist, Kathy convinced the defendants we had a good chance to prevail at trial. When the defense realized this was not going to be as easy as they had originally predicted, they initiated settlement discussions after they received our expert witness disclosure. Many cases concerning the misdiagnosis of cancer result in defense verdicts because of the difficulty in proving that the malpractice, and not the cancer, was the cause of death. Only vigorous prosecution and sophisticated medical-legal analyses can increase the odds in favor of the patient.

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