Fuchsberg Law Firm Settles Skin Cancer Misdiagnosis Lawsuit While Jury is on the Verge of Rendering Plaintiff’s Verdict

December 11, 2024
Eli Fuchsberg, Kevin Lee, Rikki Dascal, Keith Gross, and Alan Fuchsberg
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Contributors
Rikki Dascal

On the last day of trial, Kevin Lee and Rikki Dascal settled a very difficult case while the jury was out deliberating in favor of our client. The case involved a man who received a delayed cancer diagnosis as a result of his physician’s failure to properly order a workup despite the fact that he presented with irregular symptoms that warranted further evaluation. Unfortunately, by the time the cancer was discovered, it was too late, and our client tragically passed away as a result.

Although the case was settled before the jury verdict in favor of our client returned, Kevin Lee and Rikki Dascal successfully convinced the jury that there was a departure in the accepted standard of care, the departure in care proximately caused our client’s injury, and that our client was deserving of compensation.

Our Client’s Story: The Importance of a Thorough Diagnosis

In December 2015, our client presented to a podiatrist with an infected open wound on the tip of his big toe that was producing puss. Despite the fact that he had been experiencing these symptoms for some time, his podiatrist only treated him with oral antibiotics and advised him to come back in a year. The wound had not healed, and our client returned to the hospital in May, June, and July of 2016.

Our client received another referral to the podiatrist in July, and he returned to the podiatrist that same month, with the same complaints of an unhealing wound, puss, and worsening toe pain that had persisted for the 7 months since his last appointment with the podiatrist. During this appointment, his podiatrist ordered an X-ray to assess the injury but failed to properly order and evaluate the X-ray, and she prematurely ruled out the presence of osteomyelitis, an infection that spreads to the bone.

However, as our radiologist expert testified during trial, the podiatrist incorrectly ordered the x-ray by failing to specify which portion of the foot was having issues (the big toe), failing to specify that the big toe had an unhealing wound for seven months, and failing to specify that x-ray was being taken to determine whether there was osteomyelitis. Our radiologist expert also testified that there were numerous irregularities present in the X-ray that indicated osteomyelitis may be present. According to the accepted standards of care, his podiatrist should have ordered an MRI to confidently rule out osteomyelitis as a possible diagnosis rather than rely on the X-ray alone.

As Kevin Lee stated during his opening statement, “[the Podiatrist] had all of the information at her fingertips, everything she needed just to order an MRI, yet she didn’t. She sent him home. Out that door went [our client], and out that door went the best chance had at catching the cancer before it spread.”

Unfortunately, the incorrect assessment made by his podiatrist was detrimental to our client’s health. Our client’s immunocompromised status in combination with the presence of osteomyelitis are two factors that, taken together, would have indicated that he is at a higher risk of developing skin cancers, or at the very least, he required an additional workup. Because his podiatrist failed to take either aspect into account, his osteomyelitis went untreated for months and eventually developed into squamous cell carcinoma.

As a result of the original misdiagnosis, his cancer metastasized, and our client had to receive numerous invasive surgeries, multiple amputations, and chemotherapy for the last two years of his life. Had our client received a proper workup and diagnosis, his squamous cell carcinoma would have been caught much sooner, and he would have received proper treatment, and he would have had a much higher chance of survival.

During her closing statement, Rikki Dascal identified five departures from the standard of care that wrongfully prevented our client from receiving the care and attention he deserved. Finishing her closing statement with an emotional step-by-step recap of every surgery our client had to receive, Rikki Dascal successfully persuaded the jury that our client was also deserving of compensation for the entirety of his circumstances. Rikki concluded her closing by stating,

“We’re asking you to reflect on your verdict that a vulnerable, high-risk patient like [our client] should have been treated appropriately and more aggressively at [the Defendant hospital], which would have been within the correct standard of care.”

Delayed Squamous Cell Carcinoma Diagnosis

Although a toe injury may appear to be miniscule, if an infection or wound persists for a long period of time and has not responded to treatment, further evaluation is warranted. In our client’s case, his symptoms persisted for over 7 months and he had not responded to previous treatment, two factors that are extremely irregular for a typical infection or injury, yet his podiatrist failed to provide any explanation for his symptoms.

Squamous cell carcinoma is a type of skin cancer that forms as a result of an overproduction of cells in the top layer of skin. Squamous cell cancer is not as common or as life-threatening as other forms of skin cancer, however, if left untreated, the cancer can spread through the rest of your body and lead to tragic outcomes.

Symptoms of squamous cell carcinoma include irregular bumps or lesions on your skin which sometimes produces blood or puss and/or wounds/sores that won’t heal and continues to return. To properly diagnose squamous cell carcinoma, it is important for your healthcare provider to perform a skin biopsy and imaging such as a CT scan or MRI to ensure that the affected area is cancerous and that it has not spread.

As with most cancers, certain risk factors can exacerbate your risk of developing squamous cell carcinomas such as burns and sunlight exposure, a family history of skin cancer, smoking, a weaker or compromised immune system, and old age. It is important for your doctor to take all of your prior medical conditions into account when evaluating symptoms that may be indicative of squamous cell carcinoma, otherwise, they may inappropriately or prematurely rule out squamous cell carcinoma as a potential diagnosis, as was the case with our client.

Receiving a delayed cancer diagnosis or a cancer misdiagnosis of stage III or stage IV cancer can be grave for a patient, because the cancer may have already metastasized to other parts of the body, making it much harder to treat than it would have been had the cancer been caught earlier.

If you or a loved one has received a cancer misdiagnosis, speak to an experienced New York Cancer Misdiagnosis Attorney today. We can help you pursue a medical malpractice claim and recover compensation for your injuries.