CASE DESCRIPTION: Plaintiff brought suit to recover insurance policy limits from a plane crash that involved her father, husband, and son. Originally the plane disappeared and could not be found by any search parties. The plane wreckage was finally discovered eight years after its disappearance. The Defendant raised issues regarding statute of limitations and disputed the policy coverage.
RESULT: $750,000 total settlement
On August 5, 1983 a Mooney aircraft flown by Father of Plaintiff, April W., and carrying James H. [husband] as well as Grant H. [son], disappeared during a flight from the Grand Canyon to Fullerton. A search was initiated and after 12 days with no trace, the search was ended. On November, 14, 1991, during a search for another “downed” aircraft, searchers came across the wCASE DESCRIPTION: Plaintiff went to her Doctor complaining of breast tenderness. After several other visits and more related complications, the Doctor ordered a mammogram with a follow up. Despite troubling findings, the Doctor failed to order a biopsy which would have been the standard procedure. The Doctor’s failure to investigate went on for about a year. When the Plaintiff was properly diagnosed she was in Stage IIIB Intraductal Carcinoma of her left breast. Plaintiff brought suit for medical malpractice for the Doctor’s failure to diagnose breast cancer.
RESULT: $750,000.00 total settlement
On July 12, 1988 Plaintiff had an appointment with defendant, Dr. Yvonne T., at which time Plaintiff complained of breast tenderness and also advised Defendant that she had had her last mammogram more than two years earlier. (At the time of this visit, Plaintiff was over 50 years of age.) Defendant’s chart entry for that date noted objective findings of moderate breast tenderness and irregular mass. However, there was no indication of any treatment with reference to the breast, nor a follow up visit scheduled or even suggested. In fact, there was no reference to the breast whatsoever in Defendant’s assessment and treatment plan.
After several other visits, (once again with no follow-up whatsoever regarding the breast by Defendant), Plaintiff then went to see Defendant on October 2, 1989 for a regular check up. Plaintiff complained of left breast pain and yellow discharge from the left nipple with objective finding of a plapable irregular mass of 1 cm at 6 o’clock. Defendant’s chart entry for this date indicated that Plaintiff was to be scheduled for a mammogram and follow up in three weeks. No biopsy was recommended by Defendant at this time.
On October 26, 1989 Plaintiff Donna H. underwent a mammogram. The test result was date stamped “received” October 30, 1989 and Defendant’s initials appear on the report, indicating that she reviewed the report. The conclusion on the report indicated asymmetric mammary dysplasia and a 6 month follow up examination was recommended to fully exclude malignancy; but also mandated a biopsy if there was noted any “suspicious” or “dominant” mass because mammograms are commonly false negative. Notably, Defendant testified in her deposition that the mass in Plaintiff’s left breast was both dominant and suspicious, and yet she failed to refer Plaintiff out for a biopsy. This was a clear breach of the standard of care.
On November 1, 1989 Plaintiff received a message on her answering machine to contact Defendant’s office. By that the time Plaintiff received the message Defendant’s office was closed and therefore Plaintiff returned the call on November 3, 1989 (the following Monday) and was advised that Defendant wanted Plaintiff to start taking some vitamins for what was diagnosed as fibrocystic breast disease and that she should come into the office and purchase them. In this conversation with Defendant’s nurse, Plaintiff was advised that everything was fine with regards to the mammogram. Plaintiff purchased the vitamins in person from Defendant’s office on November 3, 1989. While at the office, Defendant was standing at the counter and Plaintiff indicated to Defendant that she was relieved that her mammogram was o.k. Defendant made no indication that there was anything irregular about the mammogram results, nor that there was a need for biopsy.
Plaintiff’s experts indicated that at this point, it was clearly below the standard of care for Defendant not to have advised Plaintiff of the irregular mammogram result, not to have initiated any follow up treatment plan with reference to the breast, and most importantly for failing to refer Plaintiff for immediate biopsy. As such, Plaintiff went about her regular business until October of 1990 when she received a reminder from Coast Radiology & Medical Imaging that one year had passed since her last mammogram.
On October 22, 1990, Plaintiff once again saw Defendant with continued complaints of left breast tenderness. Defendant ordered another mammogram to be performed. This mammogram was performed on October 25, 1990. On October 30, 1990 Defendant received the report of the second mammogram from Coast Radiology indicating that the appearance of the left breast was consistent with inflammatory carcinoma. Defendant contacted Plaintiff and scheduled an appointment with her that same day. During this appointment, Plaintiff was advised of the results of the mammogram. Treatment of Stage IIIB Intraductal Carcinoma was then initiated. Plaintiff underwent radical mastectomy with reconstruction, as well as radiation and chemotherapy.
On February 5, 1991 Plaintiff picked up copies of both of the mammogram reports which she had requested at an earlier date. It was not until this date that she became aware of the results of the mammogram of October 26, 1989, and that a biopsy should have been performed over a year earlier.
Plaintiff contended that Defendant Dr. Yvonne T. failed to send Plaintiff for biopsy in October of 1989, when a dominant, suspicious mass was clearly noted by Defendant. Further, even back in July of 1988, defendant should have sent Plaintiff for biopsy. Had the biopsy been done when it should have, Plaintiff’s cancer would have been diagnosed at Stage I, giving her an excellent long term prognosis and with no required mastectomy or chemotherapy.
Defendant testified in her deposition the delay in diagnosis was Plaintiff’s fault for failing to follow up in October of 1989, and that this is why no biopsy or other follow-up treatment was performed at that time. Thus the Defense premised their argument on that fact that the Plaintiff failed to follow up after the October, 1989 mammogram, but had no expert to testify on liability.
TYPE OF CASE: Medical Malpractice – Failure to diagnose breast cancer.
INJURIES: Doctor’s failure to diagnose breast cancer when she reasonably should have resulted in Plaintiff beginning diagnosed with Stage IIIB Intraductal Carcinoma of her left breast.
DATE & LOCATION OF INCIDENT: On approximately 10/90 in Long Beach, California.
PLAINTIFF’S AGE: 52 at time of incident.
OCCUPATION: Loan Consultant
Wylie A. Aitken & Richard A. Cohn
AITKEN * AITKEN * COHN
For Plaintiff – Donna H.
LAW OFFICE OF BAKER, SILBERBERG & KEENER
For Defendants – Yvonne T., M.D. & Tyson Family Medical Center
DEFENDANT INSURANCE CO.: Cooperative of American Physicians Inc./Mutual Trustreckage and remains of Plaintiffs’ Decedents.
Plaintiff contended the crash was caused as a result to pilot error due to disorientation during a night time flight. Plaintiffs relied on “res ipsa loquitur.” Plaintiffs further contended that the statute of limitations had not run due to the fact that the complaint was filed within one year of the date that the court had ordered that the missing persons be adjudged presumed deceased (despite that this was over six years after the plane was first reported missing.) Plaintiffs further contended that the policy on the airplane was in the sum of $1,000,000 (with no per seat limitation).
Defendants contended that the statute of limitations had expired due to the fact that the plane had been missing for over six years prior to the filing of the complaint. (Under California law, a person missing for five years is presumed deceased, and the statute would run one year and thereafter.) Defendants further contended that the policy limits were $100,000 per seat. Defendants brought a Motion for Summary Judgment which, was denied.
TYPE OF CASE: Aviation Crash; Wrongful Death
INJURIES: The accident resulted in the death of James & Grant H.
DATE & LOCATION OF INCIDENT: On or about 8/5/83 at or near Needles, California.
PLAINTIFF’S AGE: Decedent James H. – 41 at time of incident.
Decedent Grant H. – 5 at time of incident.
OCCUPATION: James H. – a house husband, a freelance writer and grocery clerk.
April W. – an attorney.
Grant H. – N/A
Richard A. Cohn & Wylie A. Aitken
AITKEN * AITKEN * COHN
For Plaintiffs – April W. & Colby H.-W., by and through his Guardian Ad Litem April W.
John Scott Hoff
THE LAW OFFICES OF JOHN SCOTT HOFF
For Defendants – Robert W., Estate of Robert W., Joseph R., Rawa Enterprises & Mooney Aircraft Corporation