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A Careless Misstep Leads to Lost Chances

When Jennifer was misdiagnosed as not having cancer, she lost the benefit of prompt treatment and, with her doctor’s approval, decided to have a baby, nearly dying in childbirth. Alan Fuchsberg took her doctor to trial and secured compensation that brought financial stability to her and her family.

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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 years later, the disease had spread throughout her liver. By that time, the option was lost to surgically remove what once was 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 not suffered a recurrence, and the port was removed. A year later 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 asked her doctor if it would be safe to do so. “She did not want to take any chances,” Fuchsberg states. “She already had two lovely children and being there for them, in good health, was most important.” Her oncologist gave her the green light.

With the doctor’s blessing she became pregnant, but seven months into the pregnancy she began experiencing severe liver pain. Her liver was retaining fluid and was very swollen. Nothing could be done until the baby was born. Jennifer gave birth to a beautiful baby girl following an emergency C-section. In that surgery she nearly bled to death, 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. The cancer was there all along!

“The simplistic defense to the case,” says Fuchsberg, “was that Stage IV metastatic cancer is Stage IV and her chances 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 that specific 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 a single 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 chemo treatment in dosages cycled in twice the normal frequency for twice the normal period of time. She had profound headaches and spontaneous nosebleeds, and endured tremendous neurological and abdominal pain. She had an excruciating, life-threatening pregnancy. Her chance of recurrence is significantly greater. She deserved the result we achieved,” says Fuchsberg.

“Jennifer is a positive, beautiful person, and this hasn’t changed. She is totally engaged in raising her family rather than worrying about herself,” Fuchsberg says. In this case he appreciated what the loss of that chance really means. He is happy to secure a settlement that put funds away in a trust for her children’s future and also helps her now to support the family during trying times.


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