New York Jury awards $15M for failure to diagnose breast cancer

By Correy Stephenson

The Daily Record Newswire

BOSTON -- After a doctor failed to diagnosis a lump in a woman's breast as cancer, allowing the disease to spread throughout her body and metastasize to her bones, a jury has awarded her $15 million.

Stephanie Tesorioro, a 40-year-old mother of three, found a lump the size of a marble during a breast self-exam in the fall of 2002.

She immediately made an appointment with Dr. Paul R. Fisher at the Carol Baldwin Breast Cancer Center in Stony Brook, N.Y. where she underwent mammography.

Dr. Fisher told Tesorioro not to worry because she didn't have cancer, but a clogged milk duct due to having recently finished breast-feeding her third child, said her attorney, Robert V. Fallarino of Pegalis and Erickson in Lake Success, N.Y.

Sixteen months later, Tesorioro returned to the doctor, complaining that the lump had grown, and was then diagnosed with breast cancer.

"She had a false sense of security" from the misdiagnosis and negligent care of Fisher, Fallarino said. When she went back for her second appointment in February 2004, "she kept asking if the milk duct was infected. She was so at ease and convinced that it wasn't cancer."

During the time her cancer went undiagnosed, it spread to her lymph nodes.

Tesorioro underwent a mastectomy, chemotherapy and radiation treatments to fight the cancer, which later spread into her bloodstream and metastasized to her bones.

Jurors responded to her story with a $15 million verdict entirely based on her pain and suffering.

The case is especially poignant, Fallarino said, because Tesorioro "did everything right." She performed regular breast self-exams and when she found something unusual, she went straight to the doctor.

"Stephanie is an example of someone who should have been saved," Fallarino said.

Instead, due to the 16-month gap in treatment that allowed the cancer to spread, her prognosis is "uncertain," he said.

Syosset, N.Y. attorney William T. Collins, III, who practices at Simmons Jannace and represented Fisher, noted that the parties entered into a high-low agreement when the jury was sent out to deliberate.

In the event of a defense verdict, the plaintiff would have received $500,000, he said. Given that the plaintiff won the verdict, however, she will receive only $1.5 million pursuant to the agreement.

Fallarino's goal at trial was to keep things simple for the jury.

In addition to Tesorioro and the defendant, he called two expert witnesses: an expert in radiation and one in surgical oncology.

The radiologist explained to the six-person, all-female jury that Fisher should have performed a sonogram on Tesorioro at her first visit, not merely a mammogram.

Mammograms are better at locating calcifications, Fallarino said, and provide better readings in older women. Because younger women's breasts are more glandular and dense, the radiation of a mammogram can more easily pass through a mass and cancer -- especially smaller lumps like Tesorioro's - can hide more easily.

For younger women, the sounds waves of sonography don't pass through the cancer as easily, resulting in clearer readings for doctors, he said.

The surgical oncologist provided jurors with an explanation of how Tesorioro's cancer spread from her breast throughout her body.

When she returned for her second mammogram over a year later, Tesorioro described the previously marble-sized lump as having grown to the size of a golf ball.

By that time, a biopsy came back as clearly cancer, which had spread to her lymph nodes. It later metastasized to her bones and her spine.

Fisher had a multi-faceted defense, Fallarino said.

"They tried to say that what she was feeling in October 2002 was not cancer at all," even though the cancer spread from the exact spot Tesorioro identified at that time, he said.

"The jury just didn't buy that," he added.

In addition, the defense pointed to medical records from Tesorioro's first visit that indicated she couldn't find the lump on the day of her visit. She denied that, Fallarino said, and he dismissed that argument as a "red herring."

"The experts all agree. If the patient complains of a lump, the doctor must investigate," he said.

Fallarino asked Tesorioro on the stand where the needle was inserted on the date of her first mammogram, without preparing her for the question because he wanted her to give a believable answer. She pointed to a spot on her breast - the exact spot where the cancer was located, Fallarino said, and added "right where I always pointed to."

Jurors believed in Tesorioro's sincerity, he said.

According to Fallarino, Fisher also argued that the mammogram results were equivocal.

But Fallarino emphasized to jurors that with a density visible in the mammogram image, coupled with Tesorioro's complaint of a lump, further investigation was required by the doctor.

The mammogram image itself, in the face of an increasingly high-definition, digital world, proved to be a challenge, Fallarino noted.

"Sometimes a picture is worth a thousand words," he said. "But when it is in shades of gray, that makes it more difficult."

That's why a mammogram image can be confusing to jurors. He analogized the image to the negative of a photograph and relied upon repetition to get jurors comfortable with it.

"What is good about a trial is that you get to [explain] the image with multiple witnesses and at different points in the trial," he said. "The repetition helps. Over the course of seeing the films two or three times, each time they saw the image, [the lump] became easier to see and more in focus."

Fallarino declined to provide jurors with a dollar amount for a damages award.

"I told them they didn't need some lawyer to tell them how to award pain and suffering," he said.

The jury deliberated for almost a full day before returning with the $15 million verdict.

"They basically said, 'We feel your pain,'" Fallarino said.

Published: Mon, Feb 20, 2012