Failure to Treat - Medical Negligence

WRSH partner Jason Rubin obtained a $2.25 million settlement in a medical malpractice case arising out of improper treatment of ductal carcinoma in situ (DCIS). Our client, then 50 years old, underwent a breast biopsy with the defendant breast surgeon, which revealed DCIS, a non-invasive, early form of breast cancer. She thereafter underwent a lumpectomy with the defendant approximately 10 days later. The pathology report for the lumpectomy indicated that plaintiff had a high-grade DCIS, which was focal at the surgical margin. The defendant doctor did not recommend a re-excision despite the surgical margins not being free of cancer, and did not recommend radiation therapy.

Our client thereafter followed up with the defendant for routine visits. Approximately 15 months after the lumpectomy, she underwent another breast biopsy with the defendant due to thickening of the breast tissue in the area of the original lumpectomy. This biopsy revealed recurrent DCIS.

She thereafter went to a different breast surgeon, who recommended bilateral mastectomies and sentinel node biopsies. This surgery was performed and the pathology report indicated multifocal invasive ductal carcinoma of the right breast and 75 of 75 metastatic lymph nodes. Our client was diagnosed with Stage IV breast cancer. She underwent multiple courses of chemotherapy and required breast reconstruction.

We commenced an action and alleged that the defendant breast surgeon departed from accepted medical practice in failing to recommend a re-excision after the pathology report from the lumpectomy indicated that the surgical margins were not free of cancer. Additionally, we alleged that the defendant surgeon should have recommended radiation therapy, particularly due to the high-grade nature of the plaintiff’s DCIS. When properly treated, DCIS ordinarily has a very favorable prognosis of 10-year survival approaching 99%. However, because of the failure to perform a re-excision and radiation therapy, the plaintiff’s DCIS became invasive and metastasized, requiring her to undergo extensive treatment and greatly worsening her prognosis.

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