Jennifer, a mother of three and a theater and television actress, spent two years believing she was healthy when what she really needed was surgery and treatment for cancer. According to medical studies, with surgery and chemotherapy Jennifer’s cancer could have been curable. But because of the oversight of one of her doctors, an MD pathologist, she lost that precious opportunity.
“By the time Jennifer was finally diagnosed two yearslater, the disease had spread throughout her liver. By thattime, the option was lost to surgically remove what oncewas a small singular mass. This case is about an inexcusable mistake that affected the life of a mother of three. She lost a real chance to be cured from cancer,” explains Alan Fuchsberg, who represented the woman in a civil malpractice trial against her doctor.
Fuchsberg’s client, a breast cancer survivor in her mid-30s, was periodically screened for recurrence with diagnostic imaging. In May 2008 the radiologist interpreted the PET/CT scan as showing possible metastatic disease. Chemotherapy was about to start, the port already having been inserted through her chest—when to everyone’s surprise, and Jennifer’s relief, the pathologist MD reported to her treating physicians that the biopsy results were negative for malignant cells. Jennifer was told she had notsuffered a recurrence, and the port was removed. A yearlater she had another checkup and again was told she was cancer-free.
By then it had been many years since her breast cancer.Jennifer and her husband wanted another baby. She askedher doctor if it would be safe to do so. “She did not wantto take any chances,” Fuchsberg states. “She already hadtwo lovely children and being there for them, in goodhealth, was most important.” Her oncologist gave her thegreen light.
With the doctor’s blessing she became pregnant, butseven months into the pregnancy she began experiencingsevere liver pain. Her liver was retaining fluid and was veryswollen. Nothing could be done until the baby was born.Jennifer gave birth to a beautiful baby girl following anemergency C-section. In that surgery she nearly bled todeath, and she was in acute liver failure. It was a miracle she survived, said her doctors.
“This case is about an inexcusable mistake that affected the life of a mother of three. She lost a real chance to be cured from cancer.” —Alan Fuchsberg
An immediate biopsy of her liver was positive for metastatic breast cancer. Then the slides from the biopsy two years prior were pulled out and looked at again. Thecancer was there all along!
“The simplistic defense to the case,” says Fuchsberg, “was that Stage IV metastatic cancer is Stage IV and herchances of survival were bad either way. But I took this case apart and realized that her loss here was not a statistical inevitability. We were able to prove thatspecific to Jennifer’s case, there was a medical protocol that could have cured her.”
The firm retained an expert in liver surgery at Massachusetts General Hospital, a Harvard professor who was familiar with the clinical treatment of asingle distinct metastatic mass called an “oligo mass.” This feature of her cancer, combined with the fact that her body was receptive to chemo treatment,placed Jennifer among patients who can be cured. After Fuchsberg crossexamined the defendant MD pathologist, the case settled in open court for the amount he had firmly demanded. The testimony was clear that if Jennifer’s biopsy slides had been examined following the medical protocol expected of physicians examining slides for malignant cells, the cancer should have been seen because it was in plain view. The experienced doctor could not think of another time he had made such a mistake.
“[My client] has had to endure three kinds of chemotreatment in dosages cycled in twice the normal frequencyfor twice the normal period of time. She had profoundheadaches and spontaneous nosebleeds, and enduredtremendous neurological and abdominal pain. She had anexcruciating, life-threatening pregnancy. Her chance ofrecurrence is significantly greater. She deserved the resultwe achieved,” says Fuchsberg.
“Jennifer is a positive, beautiful person, and this hasn’tchanged. She is totally engaged in raising her familyrather than worrying about herself,” Fuchsberg says. Inthis case he appreciated what the loss of that chance reallymeans. He is happy to secure a settlement that put fundsaway in a trust for her children’s future and also helps hernow to support the family during trying times.