Sommers Schwartz attorneys Robert Sickels and Dina Zalewski negotiated a pre-suit settlement over claims that doctors failed to remove an adequate amount of cancerous breast tissue during a mastectomy and subsequently failed to inform the patient she still had positive skin margins.

In December 2019, two years after completing radiation treatment for ductal carcinoma in-situ (DCIS) in her left breast, the plaintiff had a follow-up mammogram and biopsy that showed the cancer had returned but was now invasive. The surgical oncologist discussed different treatment and surgical options with the patient and advised her that due to the “invasive nature” of her breast cancer, she needed to undergo a mastectomy and axillary lymph node excisions for staging purposes. The plaintiff ultimately elected to undergo a bilateral mastectomy with bilateral breast reconstruction, which was performed in February 2020. 

During her post-operative evaluation, a nurse practitioner discussed the surgical pathology report with the plaintiff and told her about a 0.2mm finding in the left axillary sentinel lymph node. She was not told, however, that there was a positive surgical margin with DCIS. The plan was to perform an axillary lymph node dissection (ALND) only. A post-operative mammogram was not ordered, despite the report of a positive margin.

In March 2020, the surgical oncologist performed a left ALND but did not excise additional breast tissue to obtain clean margins. Following the procedure, the patient was told that none of the lymph nodes were positive for metastatic disease. 

After the plaintiff noticed a small lump in her left breast in December 2021, a January 2022 ultrasound-guided biopsy confirmed that the lump was cancer. She contacted the breast cancer team at a different medical facility in another state to seek a second opinion. During a visit there in February 2020, breast imaging revealed that a biopsy clip was still present, indicating that not all of the cancer had been removed during the original mastectomy.

The plaintiff alleged that the surgeon who performed the mastectomy failed to remove sufficient breast tissue, including the original biopsy clip. She also alleged that had she been advised of the positive margins in February 2020, she could have treated the cancer sooner and would have avoided the unnecessary pain and suffering caused by the delay in treatment as well as the continuing including medical bills, miscellaneous expenses, loss of earning capacity, and other economic damages.