Bob Buckley: Brave struggles sometimes end in loss
I recently read an article in Atlantic magazine written by a woman who had survived stage IV breast cancer. It was a powerful article and obviously very inspiring. It centered on graduations of her children, first from kindergarten and then high school and college. She did not think she would make the first graduation, but she has been able to attend all of them and she is now on life-time chemotherapy that may give her a normal life expectancy and as normal of a life as one can have being on chemotherapy.
Almost 30 years ago, I attended a seminar at my national trial lawyer’s convention. The subject was handling failure to diagnose cancer medical malpractice cases. The speaker was an oncologist, and I don’t remember anything he said except the shocking statement that no one survives metastatic cancer. At the time, that statement was probably true. I have known many who have survived metastatic cancer and many more who did not.
As I read the Atlantic article, the woman described her genetic factors, which were identical to two of my clients who died of metastatic breast cancer shortly before this woman was diagnosed. The article brought back haunting memories of my clients.
Both of my clients found out they had been misdiagnosed and came to my office for my counsel and representation. Both died while their cases were pending. One declined rapidly and was never able to give a deposition. The other was able to testify in a videotaped deposition a couple of months before she died. There were no dry eyes at the conclusion of that deposition.
No case involving a death is less tragic than any other similar case. I have handled nearly a 100 such death cases in my career. The most compelling cases are those in which the outcome would have been very different had medical negligence not caused the death. Timely diagnosis would have saved my two clients. Yet, had they been diagnosed a short time later, because of the great advances in medicine a few years later, they might still be alive anyway.
In one case, the family practice doctor failed to send her patient to a radiologist when she felt a large lump in one of her breasts. In the other case, the primary care doctor did her job correctly, but the radiologist misread the ultrasound that had been ordered after the mammogram was read properly. Both women decided to fight the battle of metastatic cancer, which was very difficult if not impossible at that time.
I recall my oncology expert, one of the leading breast cancer doctors in the country, telling me in both cases to tell my clients to get their affairs in order because their days were numbered. I didn’t have to tell my clients that, as they already knew. It is a gallant but futile fight when you know you are going to lose.
Both clients had every reason to fight. One was a single mother with two children who were still in school. The other was a grandmother who had custody of her grandson because both of his parents died in a tragic automobile accident that also left her grandson with disabling brain injuries. Her biggest concern was her grandson; her husband, who was not the grandfather of the child, took care of him after she died, and he is one of my heroes.
I have angry moments when I think about the unnecessary misery and anguish of my clients and their families. Sadly, after reading the Atlantic article, I realize that the advances in treatment of breast cancer are so amazing that both of my clients would likely be alive today even with a diagnosis of metastatic disease had it happened just a few short years later.
The author of the Atlantic article was approaching the graduation of her twin children from preschool when she was diagnosed with metastatic cancer and she hoped to make it to their graduation. Since then, with miraculous treatment with a new drug called Herceptin and cutting-edge treatment at UCLA she not only made the first graduation but graduations from kindergarten, grade school, high school and college. Her prognosis is good, as her cancer is in remission because of the research of persistent doctors at UCLA that has helped many women and saved so many lives.
It made me think about my clients who were not so fortunate. The first case concluded in December 2001 by settlement and the second case was two years later after we were successful in trial.
If my arithmetic is correct, the author of the Atlantic article was diagnosed about 17 years ago. The misdiagnoses in my cases were more than five years before hers. She had access to the doctors at UCLA who were involved in cancer research. That research and had not begun when my clients died.
Cancer research is ongoing, and many are now alive today because of it. I am thrilled for those who are able to lead normal lives even with a diagnosis of metastatic cancer. Yet, I can’t quit thinking about my clients who were not so fortunate.
Bob Buckley is an attorney in Independence. Email him at firstname.lastname@example.org.