Trial Report No. 95-T244, Medical Malpractice

Failure to Diagnose Breast Cancer – Radiologists

Type of Action

Medical malpractice

Type of Injuries

Failure to diagnose breast cancer, allowing the cancer to extend into the axilla and involve 7 of 13 lymph nodes

Name of Case

Shuler v. Brendlinger, Robinson and Monument Radiology dba Allison Breast Center

Court/Case No.

Richmond Circuit Court, No. LX-2962

Damages Awarded or Settled

Settled 10 days before trial

Amount

$500,000

Attorneys for Plaintiff

Lewis T. Stoneburner and Wallace B. Wason Jr., Cantor, Arkema & Edmonds, Richmond; and Thomas J. Schilling, Richmond

Insurance Carrier

St. Paul Fire and Marine Insurance Co.

Defendant’s Experts

Robert E. Fechner M.D., Charlottesville pathologist

Other Useful Information

The plaintiff, a 45-year-old school teacher, brought this medical-malpractice action against two radiologists and their professional corporation. The motion for judgement alleged that the defendants had failed to diagnose the plaintiff’s breast cancer, which allowed the cancer to grow and extend into her lymph nodes.

In March 1991, the plaintiff had her first-ever mammogram, taken in her OB/GYN’s office. The OB/GYN sent the films out to defendant Monument to be read by defendant Brendlinger. Although the mammogram film reflected a spiculated lesion, defendant Brendlinger made no notation of the lesion and reported to the patient and clinician that there was no evidence of malignancy.

In May 1992, plaintiff returned to her OB/GYN’s office to have another mammogram taken. This film was again read by defendant Brendlinger. For the first time, Dr. Brendlinger reported the spiculated lesion that had been present since 1991. Defendant Brendlinger also recommended that the plaintiff return to the Allison Breast Center for a specialized diagnostic mammogram in June 1992. Following the diagnostic compression spot film test, defendant Brendlinger reported that the spiculated lesion was a benign radial scar.

During his deposition, defendant Brendlinger also testified that, contrary to his written reports, he informed the plaintiff that he could not rule out cancer and that she could have a biopsy if she wished. Plaintiff strongly denied that this conversation ever took place. Plaintiff’s experts were prepared to testify that it is impossible to differentiate between benign radial scars and cancerous lesions on the basis of radiographic evidence.

Plaintiff returned to the Allison Breast Center in November 1992, for another mammogram. Again, defendant Brendlinger reported no evidence of malignancy. His report also erroneously described the breast as being surgically absent. He recommended that she return in six months for another spot compression test film.

Plaintiff returned to the Allison Breast Center in June, 1993. On this occasion, she was seen be defendant Robinson. Defendant Robinson examined plaintiff and took a mammogram, but he did not perform the diagnostic testing of a compression spot film as defendant Brendlinger had recommended six months previously. Defendant Robinson reported that the spiculated lesion appeared stable and recommended that the plaintiff return for a yearly mammogram.

In the spring of 1994, plaintiff noticed a lump in her breast. She returned to her OB/GYN who immediately referred her to a surgeon, but also recommended that she return to defendant’s office for another mammogram. On this occasion, defendants finally recommended a biopsy.

Plaintiff underwent a modified radical mastectomy, chemotherapy, radiation therapy and high-dose chemotherapy with stem cell infusion. Although there had been no evidence of a recurrence in the one year’s time since her diagnosis, plaintiff’s experts predicted that she only had between a 20 percent and 45 percent chance of surviving five years. Plaintiff’s experts were prepared to testify at trial that had the cancer been correctly diagnosed earlier, plaintiff would have had between an 80 percent and 95 percent chance of survival and that she would have only had to undergo a lumpectomy and radiation therapy, rather than the extensive treatment she received once the cancer had spread to her lymphatic system.

The defense position was that the plaintiff must have had two primary tumors because the spiculated lesion appeared to them to remain stable; moreover, their pathologist was designated as being prepared to testify that the histologic qualities of the cancer made it a particularly fast-growing and aggressive cancer that would have already done much more severe damage had it been there as long as it was visible on the mammograms.

Plaintiff’s experts were prepared to testify that the lesion did not remain stable but showed an increase in size and radiodensity. Plaintiff’s treating pathologist was prepared to testify that he did not see any evidence of a radial scar and that the cancer in the axilla was consistent with the cancer located in the center of the breast, both of them being a moderately well differentiated invasive intraductal carcinoma.

The parties used the services of The McCammon Mediation Group to assist them in reaching a settlement.

[95-T244, September 25, 1995]