Bob Buckley for The Examiner: Brave Struggles Sometimes End in Loss

July 9, 2020

Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley discusses two former clients who both died of metastatic breast cancer after being misdiagnosed and his memories from the two cases, and how the advances in cancer research could save future clients.

The article, Brave Struggles Sometimes End in Loss, was published in the July 4 edition of The Examiner. An excerpt from the article is below.

I recently read an article in The Atlantic 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 lifetime chemotherapy that may give her a normal life expectancy and as normal a life as one can have being on chemotherapy.

Almost 30 years ago, I attended a seminar at my national trial lawyers 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 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.