Landmark Case for Zwiebel & Fairbanks

This medical malpractice case settled before trial for $500,000. Pltf., age 47 at the time, presented to DEft. Dr. Spingarn in November 1994 complaining of a lump in her left breast. Dr. Spingarn diagnosed a build up of tissue on her sternum. Pltf.'s last visit with Dr. Spingarn was in June 1996. She subsequently presented to Deft. Dr. Trachtman, still complaining of a lump in her left breast, and he diagnosed costochondritis on the sternum. Pltf. treated with him for 5 months before Dr. Trachtman finally diagnosed the cancer in October 1997. Pltf. contended that as a result of the almost 3-year delay, she required a bilateral radical mastecomy and removal of a portion of the sternum. Pltf. also underwent the creation of a skin flap to cover the surgical wound. She claimed that if the cancer had been more timely diagnosed, her treatment would have consisted of a lumpectomy, which is significantly less invasive and disfiguring. The cancer has since metastasized to Pltf.'s spine.

Dr. Trachtman would have claimed that he based his diagnosis of costochondritis on Dr. Spingarn's earlier diagnosis of a build-up of tissue. Pltf. discontinued her claim against Deft. Trachtman after discovery was completed.

Deft. Dr. Spingarn would have contended that the cancer was far advanced when Pltf. first complained of the lump, and that it would have metastasized to her spine even if it had been diagnosed in 1994. Pltf.'s experts could not state that if the cancer had been diagnosed earlier, it would not have metastasized, and therefore her damages were limited to pain and suffering caused by the radical surgery.

Deft. Spingarn moved for summary judgment on liability, arguing that the Statute of Limitations had run. This action settled before a decision on summary judgment was made. Settlement apportionment: The entire settlement was paid by Dr. Spingarn.

Pltf. Expert: Dr. Robert Schwartz, Chairman of Family Practice, University of Miami.