OB/GYN accused of mistaking cancer for yeast infection

Settlement $1,200,000
Case Client v. Dr. P (M.D.) and OBGYN Group Practice
Court Richmond Supreme
Date 3/5/2012

Facts & Allegations
New York City Failure to Diagnose Vulva Cancer Lawyer

On Aug. 15, 2007, plaintiff Client, 51, a real estate broker, was evaluated by gynecologist Dr. P after complaining of a lesion and irritation to her right vulva. Client had never before treated with Dr. P, but Dr. P was affiliated with a practice group whose OB/GYNs had previously treated Client. Dr. P's notes from the visit reflect observations of raised lesions on the right labia. A speculum examination, smear test and yeast culture were performed, but no biopsy was taken. Dr. P's ultimate diagnosis was yeast infection, and he prescribed anti-fungal cream.

In the spring of 2008, Client was diagnosed with cancer of the vulva. She sued Dr. P and the practice group, alleging that her cancer had existed as of the Aug. 15 visit, and that Dr. P's failure to diagnose, or take steps that would have allowed him to diagnose, the cancer during that visit constituted a departure from accepted standards of medical care, and that the practice group was vicariously liable for his negligent treatment.

According to the Client's complaint, Dr. P received negative results for Client's yeast culture on Aug. 20, but did not notify her of the development. Several days later, he allegedly received negative Pap test results, but engaged in no follow-up other than to send a letter advising her to return within six months for additional smear testing. Client claimed that in March 2008, she returned to the practice with complaints of continued symptoms associated with the lesion on her right vulva. A colleague of Dr. P's performed a biopsy, after noting that the lesion was consistent with malignancy. The pathology report was inconclusive, but did not rule out cancer. Client was referred to a gynecologic oncologist. After further testing, Client was diagnosed with keratinizing squamous cell carcinoma.

According to Client, Dr. P contacted her after she was diagnosed, and offered his assistance in treating her cancer. Subsequently, Client and her adult daughter went to the practice's offices to pick up pain medication for which Dr. P had agreed to provide a prescription, and Dr. P allegedly told the daughter that he thought the lesion area had been the result of a yeast infection.

With respect to Dr. P's allegedly negligent decision not to perform a biopsy at the underlying visit, defense counsel argued that Client had been in such a high amount of pain that Dr. P could not perform a biopsy. (Plaintiff's counsel responded that Dr. P could have used an anesthetic if there was a pain issue, and that the notes reflected that Client's speculum exam had been done without anesthetic.)

In response to the allegation of failure to properly follow-up, Dr. P. stated that he had actually asked Client to schedule an appointment to take place within a month of the Aug. 15 visit, but that she failed to comply with this instruction. (Plaintiff's counsel counter-argued that there had been no reference to this instruction in Dr. P's notes, and that Client's name apparently had not been entered into the practice's automated call-back system following the Aug. 15 visit.)

Injuries/Damages
scar and/or disfigurement; vaginal injury; sexual dysfunction; metastatic cancer; radiation therapy; reconstructive surgery

Client claimed that after being diagnosed with cancer, she struggled to secure adequate healthcare coverage, with insurance ultimately being supplied by the federal government. She underwent a radical vulvectomy in June 2008, and argued that the operation left her with significant, permanent disfigurement to her vaginal area. She underwent radiation therapy in the fall of 2008, receiving 28 treatments to the bilateral vulva walls and bilateral inguinal areas. Those treatments allegedly involved secondary symptoms including irritated skin in and around the groin, irregular bowel movements, urinary problems, vaginal discharge and sexual inactivity. Client contended that developing cancer -- and undergoing invasive procedures -- in such a sensitive part of her body had caused intense psychological trauma, in addition to physical pain; she stated that the break-up of a longstanding relationship she had been in at the time she was diagnosed was attributable, in part, to her illness.

Plaintiff's counsel argued that Dr. P's negligent diagnosis had allowed Client's cancer to spread to her lymph nodes, causing her staging to go from the second to the third stage. It was alleged that a more timely diagnosis would have prevented the necessity of treatments such as radical vulvectomy and radiation therapy.

The defense reasoned that there was no definitive medical proof that an earlier diagnosis would have made a difference with respect to either the treatment Client later received, or her ultimate prognosis.

Result
The day on which jury selection was to commence, the parties negotiated a settlement agreement that will see Client receive $1.2 million from malpractice insurance policies with $2.3 million in combined coverage.