Defense Verdict in Breast Cancer Case
One of our partners, Tom Leverage, obtained a defense verdict for a radiologist accused of misreading mammograms in a breast cancer case. The trial was held in Supreme Court, Suffolk County before Judge Leis in Central Islip. The jury returned its verdict in about 15 minutes.
The case alleged against the radiologist was a failure to observe, report, and communicate what was alleged to be a suspicious lesion seen on the right CC view and a cleavage view in October 2006. The plaintiff’s expert testified that this was a new lesion not seen on prior films and spiculated in shape. Eight months later the plaintiff had a 2.5 cm cancerous tumor removed from her right breast. It was found to be a very aggressive Stage II tumor.
The plaintiff opted for a bilateral mastectomy. She claimed this was in part due to the fear that cancer had been festering in her for 8 months. She also claimed a reduced chance of a cure due to the delay in diagnosis.
Mr. Leverage presented visual evidence with a special projector used to display the digital mammograms with functions similar to those available to the mammographer in 2006. In addition, numerous blow ups of past mammograms were placed to recreate what the radiologist saw in her office. Both the defendant and the defense radiology expert showed images of normal breast tissue in the 2004 and 2005 mammograms which when compared to allegedly misread 2006 mammogram justified a normal reading. Mr. Leverage also proved that the tumor removed in 2007 was not a spiculated mass, by presenting images from the pathology slides and through testimony from an expert in breast pathology.
The defense also called an expert in oncology, who explained that due to the very aggressive nature of this cancer, the same chemotherapy would have been given if the cancer had been diagnosed earlier. In addition, he testified that no matter when the cancer was diagnosed, the plaintiff had the option of a bilateral mastectomy – a personal choice to avoid future breast cancers. In addition, since we were now six years since her mastectomies and no metastatic sites had been found, the patient was considered cured.
The jury found that the 2004 and 2005 mammograms showed normal breast tissue in the area where plaintiff claimed a new lesion appeared in 2006. The jury agreed with the defense that the area in question in the 2006 mammogram was not suspicious and required no further work-up.