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June 2018: Defense Verdict Victory in Failure to Diagnose Breast Cancer Case

June 15, 2018

 

In June 2018, Senior Trial Partner Anthony M. Sola, assisted by Partner Thomas Kroczynski, Associate Kerona Samuels and paralegal Marilyn Weiss obtained a defense verdict after a 2 week trial in Supreme Court, Queens County before Justice Earnest Hart.

 

The case involved a claimed failure to diagnose breast cancer in a then 42 year old married, working mother of 3 children.  We represented the only defendant, a radiologist, and it was claimed she misread a mammogram on October 31, 2013. Seventeen months later the plaintiff was diagnosed with an invasive lobular breast cancer at Sage IIIC with a significantly shortened life expectancy. At the time of diagnosis the tumor was approximately 8 x 8 x 5 cms. in size, and had spread to 10 of 18 lymph nodes. She had undergone bilateral mastectomies, breast reconstruction, chemo therapy & radiation therapy.

 

Our defense was that her lobular breast cancer was a very aggressive, inflammatory cancer with an exceptionally fast doubling time. As such, if one used a fast doubling time for the tumor and calculated going back in time, the tumor at the time of our client’s October 2013 mammogram would have been so small as to not have been detectable, especially since she had dense breast tissue which makes detecting a lobular breast cancer on mammography difficult under any circumstances. 

 

Of course, plaintiff had expert witnesses in radiology and medical oncology who testified, contrary to our position, that the tumor doubled in volume only at an average rate of every 90 days and therefore was 2.5 cm in size and very detectable in October 2013.  Consequently, we had - as usual - a clear cut credibility issue between the plaintiff and the defense cases.  

 

Here is where our work-up on the experts proved extremely helpful.   Ms. Samuels did an excellent job digesting scores of transcripts of the plaintiffs’ experts. On cross examination, as one example, plaintiff’s oncologist denied that inflammatory breast cancer has a doubling time of only 30 days. But we had a transcript from one of his prior cases in which he said exactly that. He also denied on cross that the skin in inflammatory breast cancer has the look of an orange peel;   again, he testified contrary to his present testimony in a prior case.  Finally, he testified the patient did not have inflammatory breast cancer, but we had the plaintiff’s Memorial Sloane Kettering records which had that as the diagnosis.  So by being able to demonstrate that he had given completely different testimony in prior cases under oath, and contradicted a Memorial record, we were able to impeach his credibility.

 

Additionally, plaintiff put on a treating psychologist as a damages witness.  MCB Paralegal Marilyn Weiss conducted research on him and found that 16 years ago he had been convicted of fraudulent billing of Medicare in a Federal felony case had spent 6 months in jail in the Otisville Federal Penitentiary. While this did not go directly to the liability issues, it nevertheless hurt the overall credibility of the plaintiff’s entire case. The net result was a unanimous defendant’s verdict.

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