The Intricacy of Coordinating a Comprehensive Clinical Team

Bucky Hurt, Jeremy Palma, and Kara Graham

Pursuing a clean bill of health following cancer treatment is always the target for both patient and provider. But sometimes the natural evolution of the disease and associated complications make the pursuit of that outcome incredibly challenging.

In a recent medical malpractice case, Rissman attorneys Bucky Hurt, Jeremy Palma, and Kara Graham obtained a defense verdict on behalf of a clinician and their respective insurance company following a seven-day trial.

In the case at hand, the plaintiff was diagnosed with breast cancer a few years prior by the defending client, a pathologist. Prior to the diagnosis, she had a medical marker placed on a tumor, and subsequently underwent six months of chemotherapy treatment with an oncologist, followed by a bilateral mastectomy performed by a general surgeon. The defendant performed the pathological examination of the surgical pathology specimens following the surgery.

At the heart of the plaintiff’s claim were two specimens. The defendant’s surgical pathology report noted no malignancy in either—and following receipt of the pathology report, the rest of the clinical team concluded the plaintiff had experienced a complete pathological response, was cancer-free, and offered no further treatment. 

The following year, the plaintiff developed another palpable mass in the same location. A mammogram revealed the marker in the tumor was still present, meaning it hadn’t been removed by the oncologist during surgery, which resulted in a regrowth of the cancer. At that point, the surgeon advised the plaintiff that the treatment team had made a mistake.

After discovering the tumor, the plaintiff underwent a lumpectomy followed by chemotherapy and radiation treatment, from which she had serious adverse reactions and long-term side effects. 

The plaintiff claimed the defendant failed to advise the surgeon in her pathology report of the remaining specimen discrepancies. She sued the surgeon for failing to remove the tumor bed, as well as the associated medical center for the alleged negligence of both physicians. The surgeon and hospital settled over a year ago, leaving the defendant as the only remaining party involved in the matter. 

In summary, the plaintiff argued that the defendant was the safeguard and the only person who would know that the cancer was still present. She asked for a considerable sum in damages.

The defense argued that the surgeon admitted to a mistake in her operative report, which ultimately led her to conclude she never removed the marker. As a result, the defense suggested it was the surgeon’s fault for failing to remove the tumor and failing to follow up on the pathological findings that led to the regrowth of the cancer.

The defendants withdrew their Fabre defense and made an empty chair argument during closing. The jury deliberated for an hour and a half before returning a verdict in favor of the defense.

Special thanks to Kelly Fetro, Kaitlyn Russ, Kasey O’Connor, and Chris Ringer for their hard work in preparing this case for trial.

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