$910,000: Wrongful Death Stemming From Failure To Diagnose Ovarian Cancer

CASE DESCRIPTION: Failure to diagnose ovarian cancer

RESULT: $910,000.00 total settlement

This is a wrongful death/medical malpractice case.  Plaintiffs are the husband and two daughters of decedent Sherri D.  In Summer 2000, Sherri D. was diagnosed with a left ovarian cyst.  Defendant Donald O., M.D., an obstetrician, removed the cyst on December 1, 2000.  During surgery, the cyst ruptured and bled, and Dr. Donald O. chose to remove the entire left ovary and tube. On pathology the left ovary was later determined to have a mucinous tumor of low malignancy potential.  Dr. Donald O. also examined the right ovary at that time and noted that the right ovary also had a cyst, which he lanced and drained (allowing malignant cancer cells to spill into the abdomen). Dr. Donald O. took photographs of both ovaries during the surgery, but he did not mention the condition of the right ovary or the lancing/draining of the ovary in his operative note/findings which is below the standard of care.  Neither did Dr. Donald O. have the right ovary/cyst pathologically reviewed at the time of this surgery, despite being lanced/drained/ruptured, but left it untreated for the next seven months.

Sherri D. was referred to gynecological oncologist Fikrit A., M.D. who noted the cyst found by ultrasound on the remaining right ovary.  Dr. Fikrit A. recommended removal of the right ovary, and the uterus; or in the alternative, that Sherri be closely followed by pelvic CT-scan and CA-19 tumor marker, and sonograms every three months.  Defendant Dr. Donald O. never ordered the CA-19 marker tests and surgery was not scheduled until July 2001.  Since Dr. Donald O.’s prior operative note never mentioned lancing or draining/rupturing the right ovary, Dr. Fikrit A. had no clue that there might be some urgency in reacting under the circumstances.

In July, 2001, Dr. Donald O. performed the second surgery, removing the right ovary, tube and uterus without a gynecological oncologist on hand to assist in the procedure. Dr. Donald O. instead simply sent the ovary (and hysterectomy) specimens for pathological evaluation — but did not perform the indicated cytology washings, biopsies, lymph node removal, etc. . . .

A complete hysterectomy (or at least removal of both ovaries) at the time of the first surgery would have, to a reasonable medical probability, eliminated the ovarian cancer surgically — with little or no metastatic spread and relatively high chance of cure and normal life expectancy.  Had such occurred, it is unlikely that any metastatic disease would have ever surfaced — and Sherri D.’s cancer would have been simply removed surgically (with the right ovary), leaving her cured, and with a better than 85% to 95% long term survival rate (with the cancer having never progressed past Stage 1).

It must also be noted that as of the time of the July 2001 surgery, Dr. Donald O. had co-Defendant Dr. John O. (a pathologist) come into the operating room for an intraoperative pathology consultation.  Dr. John O. evidently “declined” to do a “frozen section” intraoperatively.  Had a frozen section been done, it would have yielded one of two findings:  (a) the correct diagnosis of invasive/malignant mucinous adenocarcinoma (cancer), or (b) the incorrect diagnosis of low malignancy potential mucinous tumor, which would have pointed defendants toward cytology washings, omental biopsy and other staging procedures to determine if any cells were actually outside the ovary in the abdomen.

The protocol would customarily be for Dr. Donald O. to stage first, before removing the ovary for pathologic review, so that a determination as to whether there were cancer/LMP cells outside the ovary could be made without the concern that the findings were contaminated by cell spillage that can occur due to the surgical removal of the ovary/cyst.   Dr. John O. later reviewed the pathology specimen and misread the diagnosis.  Dr. John O. reported to Dr. Donald O. that Sherri D. again had mucinous LMP on the right ovary (now a “bilateral’ finding on both ovaries, if correct) which would leave Sherri D. out of danger.  Plaintiff’s experts reviewed the pathology slides and interpreted them as invasive mucinous adenocarcinoma of the ovary.  Because both ovaries were removed as of July 2001, there must have been cancer cells outside the ovary as of the time the July 2001 surgery occurred.  If not, the removal of both ovaries would have surgically removed/cured the cancer.

Plaintiffs contended that they suffered economic loss in the sum of $1.25 million.  In addition, they would be limited to $250,000 in non-economic damages under MICRA.  Defendant’s economist calculated Plaintiff’s economic loss at $750,000.00.

TYPE OF CASE: Wrongful Death/Medical Malpractice

INJURIES: Decedent’s death was the result of a misdiagnosis of ovarian cancer.

DATE & LOCATION OF INCIDENT: On 2/7/03 in Torrance, California.

Decedent – 43 at time of the incident.
Craig D. – 56 at time of the incident.
Morgan D. – 11 at time of the incident.
Lindsey D. – 8 at time of the incident.

OCCUPATION: Plaintiff’s decedent was a stay at home mother; however had just been accepted into nursing school.

Richard A. Cohn
For Plaintiffs – Craig,  Morgan & Lindsey D.

Robert Reback
For Defendant – Donald O., M.D.

Don Fesler
For Defendant – John O., M.D.