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GBMC, Advanced Radiology hit with $2.4M verdict in breast cancer case

The Sandra and Malcolm Berman Comprehensive Breast Care Center at the Greater Baltimore Medical Center. (File photo)

A jury returned a verdict of $2.4 million June 27 from the Circuit Court for Baltimore County in favor of Melissa Ward against Greater Baltimore Medical Center (GBMC) and Advanced Radiology PA, stemming from care she received from at The Sandra and Malcolm Berman Comprehensive Breast Care Center.

In February 2018, Dr. Sara Fogarty performed a bilateral nipple sparing mastectomy on Ward. At the time, Ward was 40 years old and a malignant breast cancer had been identified in her right breast. The malignant tumor had been biopsied and a metal clip had been deposited at the biopsy site to assist in locating the precise area of the malignancy.

Ward underwent five months of pre-operative chemotherapy in an effort to shrink or eliminate the tumor. Mammogram and ultrasound after chemotherapy showed that the biopsy clip remained in place and that the tumor, though smaller, still remained. She elected to undergo the double mastectomy surgery in order to remove the right breast malignancy and in order to limit her future risk of developing additional breast cancer in either breast.

During the mastectomy surgery, Fogarty failed to remove all right breast tissue, and in particular, failed to remove that portion of the right breast containing the tumor. The failure to remove the right breast tumor became apparent when the pathologist who examined the right breast mastectomy specimen was unable to identify breast cancer or biopsy clip or biopsy site changes in the specimen.

Fogarty presented her concern for retained tumor and clip in Ward’s right breast to a tumor board at GBMC. The board recommended imaging to evaluate the concern. Dr. Judy Destouet of Advanced Radiology PA attended the board meeting and agreed to personally supervise the additional imaging to evaluate for this concern.

The additional imaging consisted of both right breast ultrasound and right breast mammogram. These studies were extremely painful as they were performed only eight days after the doubled mastectomy. Ward testified she was not told the reason the imaging was ordered and performed and believed the studies were simply a necessary part of her ongoing medical care.

Though Destouet reported the studies in February 2018 as “negative” for breast cancer and the biopsy clip, she revealed in testimony that she can, in retrospect, identify the biopsy clip on mammogram. Destouet also testified though she could not see the clip in February 2018, she believed the clip and tumor yet remained in Ward’s body.

Destouet claimed she and Fogarty discussed their continuing mutual concerns for retained tumor and clip in February 2018 and agreed upon a plan to obtain additional imaging in May 2018. But neither Destouet nor Fogarty documented this plan in their respective medical records and Ward testified that neither of them informed her of their concerns for retained tumor or of their plan for additional imaging.

Ward testified that Fogarty informed her she had experienced a “complete pathologic response” to pre-operative chemotherapy. The medical oncologist at GBMC likewise informed Ward she had experienced a “complete pathologic response” to chemotherapy, a diagnosis both Fogarty and the GBMC medical oncologist now concede was incorrect. This incorrect diagnosis was recorded in Ward’s medical records and relied upon by subsequent providers.

Though a limited right breast ultrasound was performed in March 2018 at Advanced Radiology, it was not performed by Destouet and it was not ordered or  performed to evaluate for the missing tumor and clip. Nevertheless, Fogarty testified she was “reassured” by the March ultrasound that no turmor remained in Ward’s body and saw no need to follow her earlier plan to get additional right breast imaging in May 2018.

In the meantime, Ward was treated as though her tumor had been successfully treated even though the malignant tumor remained in her right breast. It was not until November 2018 – this was nine months after her bilateral mastectomy – that Ward again felt a lump in her right breast in the same area where she had first identified her cancer. Imaging at that time revealed the malignant tumor and biopsy clip that had not been removed at the time of the surgery in February 2018.

The delay in removing Ward’s breast cancer directly led to her need for additional cancer treatments, including five weeks of daily radiation therapy, which resulted in skin loss, burning, scarring and contracture formation. The delay also led to multiple surgeries to remove the retained tumor and eventually to reconstruct the chest.

Ward’s providers have told her that the delay in removing her cancer has increased her risk for future disease, but they do not know by how much. They have explained that her case is unique because no one would ever intentionally leave a tumor in a patient’s body for nine months. Because there are no large scale studies of patients in Ward’s situation, she testified to a great deal of emotional trauma about her future.

Ward’s case, according to her attorney, Patrice Meredith Clarke, “was not about one mistake made by one person on one day.” Rather, she said, “It was the system that failed Ms. Ward and it is the system that must be held accountable. And the jury with its verdict did just that. Ms. Ward and I are very grateful for their decision.”

Judge Jan M. Alexander presided over the case. Ward was represented by Clarke and Kathleen Howard Meredith of Iliff, Meredith, Wildberger & Brennan, PC. GBMC was represented by Tina M. Billiet and Michelle Dian of Waranch & Brown LLC. Advanced Radiology PA was represented by Andrew Vernick and Christopher Greaney of Vernick & Associates.