Madera v. Klein

Defense Verdict

Date of Verdict: Oct. 22.

Court and Case No.: C.P. Delaware No. CV-2015-007224.

Judge: Charles B. Burr II.

Type of Action: Medical malpractice.

Injuries: Delay in cancer diagnosis.

Plaintiffs Counsel: Hugh A. Donaghue, Donaghue & Labrum; Francis J. Curran Jr., The Curran Firm.

Plaintiffs Experts:  Mark S. Colella, radiology, Natrona Heights; Ellen M. Berman, psychiatry, Merion Station; Andrew C. Verzilli, economics; Lansdale; Harold M. Bruck, breast surgery, Glen Rock, New Jersey; Anthony J. Smith, OB-GYN; Richmond, Kentucky; William C. Murphy, physical medicine, Media.

Defense Counsel: Charles A. Fitzpatrick III and Patrice S. O'Brien, Rawle & Henderson, Philadelphia.

Defense Experts: Ned Z. Carp, general surgery; Wynnewood; Leroy M. Parker, oncology, Boston; Charles J. Dunton, OB-GYN; Wynnewood; Kimberly A. Kubek, radiology; Newtown Square.

Comment:

On July 17, 2014, plaintiff Laura Madara, a veterinarian in her 50s, was diagnosed with cancer of her left breast. She claimed that radiologists Lisa Klein and Frank DuPont III failed to diagnose the cancer and failed to perform ultrasounds that had been ordered by her obstetrician-gynecologist.

Madara sued the two radiologists, their employer, Trustees of the University of Pennsylvania Health System, and related-entity Penn Radiology at Radnor. Madara also sued other medical practitioners; the claims against those parties were dismissed prior to trial.

In February 2013, during an annual gynecological exam, a dense 3-centimeter area was found in Madara's left breast. Her physician ordered a mammogram and ultrasound of the left breast. Klein read the mammogram as normal and disregarded the physician's orders by failing to perform the ultrasound, Madara alleged.

In November 2013, Madara, after the death of her sister-in-law due to breast cancer, presented to her gynecologist for another exam. Just as in February, the physician found a dense area of breast tissue in her left breast. It was determined that Madara would wait until her annual exam in three months to order imaging studies due to insurance issues. A consult with a breast surgeon was discussed during the exam.

On March 26, 2014, Madara underwent a mammogram. The impression indicated left breast asymmetric density. On April 9, Madara returned and underwent a mammogram read by DuPont, who determined the study was absent of an abnormality. An ultrasound was ordered but it was not performed.

In July, Madara noticed physical changes in the upper quadrant of her left breast. On July 10, she consulted with a surgeon, who found a five-centimeter mass in the upper-outer quadrant left breast with nipple retraction and skin involvement. A mammogram and ultrasound were ordered. The mammogram, when compared to previous examinations, showed no significant change. However, an ultrasound discovered a malignancy of the left breast. A biopsy revealed invasive lobular carcinoma.

Madara's expert in radiology testified that, given Madara's age and family history of breast cancer, the standard of care warranted a targeted ultrasound on March 2013 and April 2014. When Madara's malignancy was diagnosed, it was massive in size at 10 centimeters. The mass was clearly evident on ultrasound despite not being seen on mammograms, which meant that it would have been obvious on ultrasounds in March 2013 and April 2014. The expert concluded that the deviation of standard of care by Klein and DuPont resulted in a significant delay in the diagnosis of Madara's breast malignancy.

The defense maintained that Klein and DuPont performed their duties as radiologists within the standard of care. According to the defense, following her February 2013 exam, Madara waited six weeks to schedule the mammogram and ultrasound that her physician had ordered. Madara denied the she delayed scheduling the studies.

On March 20, 2013, Madara presented to Penn Medicine at Radnor for her mammogram. Klein read the mammogram and compared it to Madara's 2009 and 2011 mammograms, and found no changes. Klein testified that she recommended that Madara return in one year for a mammogram, unless her symptoms changed.

According to Klein and DuPont, when a physician orders a mammogram, an ultrasound is always also ordered. This avoids the necessity of the patient having to return on another date. However, a radiologist can determine if an ultrasound is not necessary depending on the mammogram reading. Klein testified that she did not perform an ultrasound on Madara because she felt one was not needed.

The defense maintained that, during Madara's visit with her physician in November 2013, it was recommended that Madara undergo a diagnostic unilateral mammogram, an ultrasound of the left breast and an exam with a breast surgeon. Madara failed to schedule her exams and was contacted by her physician's office twice in February 2014, and was reminded of the importance of getting a mammogram and surgery consult, the defense contended.

According to the defense, Madara's physician's office contacted her five times between April and July 2014 in order for her to schedule an exam with a breast surgeon, which she had not done. Madara testified that she did not recall receiving such phone calls.

The defense's expert in radiology opined that there is nothing suspicious on the mammograms read by Klein, and that DuPont met the standard of care as he appropriately described his findings and had Madara return for follow-up imaging. The expert stated that whether or not an ultrasound is performed in conjunction with a mammography is within the judgment of the radiologist, even if the referring physician has written an order for an ultrasound. Madara had a stable asymmetry that had been unchanged for years, both by mammography and clinical examination. As such, both Klein and DuPont's decision not to perform ultrasounds were within the standard of care, the expert maintained. Any alleged delay in diagnosis was due to Madara's conduct in ignoring her physician's advice to consult a breast surgeon and for failing to do so, the expert concluded.

The defense's expert in obstetrics-gynecology testified that any delay in diagnosis was due to Madara's failure to follow her physician's recommendations for follow-up studies and a consultation with a breast surgeon for over eight months.

On July 29, 2014, Madara underwent a bilateral mastectomy with lymph node dissection/removal. She then treated with extensive chemotherapy and radiation, for the next year. In June 2015, Madara complained of weakness and fatigue in her arms and legs, and swelling in her hands and feet. She was diagnosed with polyneuropathy and lymphedema. She was put on a course of physical therapy, which she treated in the ensuing years. Her treatment included massage and exercise.

Madara attempted to return to work as a veterinarian eight months post-surgery. However, due to fatigue and a loss of mental acuity, Madara was unable to work and was forced to give up her veterinary practice. According to Madara, the combination of her physical limitations and her inability to work resulted in depression. She came under the care of a psychiatrist, with whom she continued to treat at the time of trial. At the time of trial, Madara continued to take multiple medications and consult with her physicians.

Madara's expert in general surgery testified that, had Madara's cancer diagnosis been made in April 2014, rather than in July 2014, it would have likely changed the stage of Madara's cancer and reduced the risks of mortality and morbidity.

According to Madara's expert in physical medicine, she developed polyneuropathy as a result of chemotherapy, which is a known side effect. The condition has affected her ability to perform her normal activities of daily living and her vocational duties. The expert determined that her prognosis for full recovery is poor.

Madara's psychiatrist testified that she suffers from major depressive disorder as a result of her cancer diagnosis, fatigue, neuropathy, loss of her veterinary practice and loss of identity as a veterinarian. It is unlikely that Madara will be able to hold any full-time position in any field, and she will indefinitely suffer symptoms of major depressive disorder, the physician concluded.

Madara sought to recover $702,744 in future medical costs for ongoing medications related to her cancer and polyneuropathy, and possible future physical therapy. She further sought to recover $1,355,835 to $1,615,804 in future lost wages, which was calculated by her expert in economics.

Madara and her husband testified about the emotional and physical impact her cancer has had on her and her family. Madara alleged that she is no longer able to work or engage in family activities, due to her fatigue, polyneuropathy and depression. She sought damages for past and future pain and suffering, and her husband sought damages for his claim for loss of consortium.

The defense's expert in oncology testified that the alleged 16-month delay in diagnosis — from Klein's reading on March 26, 2013, to the date of diagnosis in July 2014 — did not change Madara's treatment or her prognosis. Her failure to timely obtain her follow-up studies contributed to the alleged delay, the expert stated.

According to the defense's expert in general surgery, Madara's decision to have a bilateral mastectomy was purely a personal decision. There are no studies that establish better survival rates for women choosing to have elective bilateral mastectomies, the expert noted. The expert concluded that Madara's treatment and prognosis would be no different than if a diagnosis had been made in 2013.

The defense did not dispute Madara's alleged injuries and damages.

The jury rendered a defense verdict. It found that Klein was not negligent. It also found that DuPont was negligent, but that his negligence was not a factual cause of injury to Madara.

This report is based on information that was provided by plaintiffs counsel. Additional information was gleaned from court documents. Counsel of DuPont, Klein, Penn Radiology at Radnor and the Trustees of the University of Pennsylvania Health System did not respond to calls for comment, and the remaining defendants' counsel were not asked to contribute.

—This report first appeared in VerdictSearch, an ALM publication.