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Didio v. Monasterio

July 26, 2007

MIA DIDIO, PLAINTIFF-APPELLANT,
v.
MARY LOU MONASTERIO, M.D., DEFENDANT-RESPONDENT, AND 21ST CENTURY DERMATOLOGY AND MARCY GOLDSTEIN, M.D., DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4519-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 16, 2007

Before Judges Wefing, Parker and C.S. Fisher.

Plaintiff Mia Didio appeals from a judgment entered on December 23, 2005 after a jury found no cause for action on her medical malpractice complaint. We affirm.

I.

Plaintiff had a history of cancer. At age two she had a tumor removed from one side of her brain. In her mid-twenties, two more tumors were removed from the other side of her brain. Notwithstanding the brain tumors and the difficulties associated with them, plaintiff completed high school and one year of college and then worked at daycare centers. She was married at age twenty-four. Her first child was born in 1997. On March 20, 2000, her second child was delivered by defendant Mary Lou Monasterio, M.D., a gynecologist/obstetrician.

After her second child was born, plaintiff noticed a discharge crusting on her right nipple. On April 20, 2000, a month after giving birth, plaintiff saw defendant for her post-partum examination. Plaintiff testified that she told defendant during that visit about oozing from her right nipple and that defendant knew she was not breastfeeding. Plaintiff stated that after defendant looked at her nipple and performed a "full body exam," defendant told plaintiff that it was probably just milk and not to worry about it. Defendant's records from that office visit indicate that the condition of plaintiff's breasts was "negative." Defendant testified that she would have written down any problems that plaintiff had mentioned. During the post-partum visit, defendant performed a breast exam and made a note that her findings were negative, meaning that there were no palpable lumps, induration (hardening), or abnormal nipple discharge.

Plaintiff saw her family doctor seven times during 2000 and four times during 2001 for headaches and sore throats. She never mentioned the nipple discharge to him. Plaintiff explained that she did not raise the issue with her family doctor because "I have a gynecologist for that." Plaintiff also saw Dr. Carol Glaubiger, a specialist in internal medicine, who referred her to a dermatologist for the nipple discharge.

On October 19, 2001, plaintiff saw Dr. Sang Hui Kim, a Board Certified Dermatologist, who practiced with 21st Century Dermatology. Plaintiff testified that she asked Dr. Kim to do a biopsy, but Dr. Kim diagnosed eczema and prescribed a cream.

Dr. Kim testified that her practice is to take a detailed history from new patients, ask the patient the reason for the visit and offer a full body skin examination for any abnormalities. Dr. Kim's notes indicated that plaintiff complained about a spot on her right temple that had been present for a long time and a spot behind her right ear but never mentioned her breasts or any other complaints. Dr. Kim testified that she would have written down any complaints and positive findings.

Plaintiff next visited defendant for her annual examination on November 5, 2001. Plaintiff testified that she told defendant her nipple had continued to ooze since the birth of her second child, that it was getting worse and that it had started to crust. She stated that defendant looked at her nipple and told her that the discharge was probably milk and not a cause for worry. Plaintiff asked defendant why the condition did not heal and requested a biopsy and a mammogram, but defendant thought there was no need for further testing and that plaintiff was too young for a mammogram. Defendant's notes from that visit stated that plaintiff's breasts were "negative for lump and abnormal discharge" and had "no skin induration." Defendant maintained that the absence of notation in her records regarding plaintiff's breast indicated that plaintiff did not have any complaints.

A few weeks after her annual visit, plaintiff returned to defendant on November 29, 2001 because of her concern about the breast. Plaintiff testified that she again requested a mammogram, but defendant declined to order it and told plaintiff there was no cause for worry. Defendant's notes for this visit indicated that plaintiff wanted to show her "something in [the] nipple" and that defendant found a cracked secretion but no bleeding.

In her physical examination of plaintiff's breast, defendant found no lump or induration. Defendant testified that she specifically looked for a lump because she thought lumps might be a source of the secretion. She was unable to express a secretion from plaintiff's breast. Defendant told plaintiff to return in six months and scheduled an appointment for May 23, 2002. Defendant advised plaintiff to return sooner if the condition persisted or worsened. There was no indication in defendant's records as to the length of time plaintiff experienced the condition. Defendant added that she would have written down any significant findings like scaling, reddening of the areola, or a large amount of crusting, but not insignificant findings like the "very tiny" quantity of crusting that plaintiff presented or a color of discharge that did not indicate a potentially serious problem. If defendant had seen any redness or signs of inflammation, she would have prescribed a topical treatment and referred plaintiff to a dermatologist.

On January 22, 2002, plaintiff saw Dr. Goldstein, another dermatologist at 21st Century Dermatology. Dr. Goldstein's records indicate that plaintiff's main complaint was that two of her fingers were "opening" and bleeding. Plaintiff also expressed concern that her right nipple had been "opening" and oozing for six months. Dr. Goldstein found yellowish crusting and debris within an "area of yellowish oozing." She prescribed a topical antibiotic and cortisone cream for the nipple and made a note to consider a biopsy in the future if the treatments did not work.

Plaintiff did not see defendant for the scheduled May 23, 2002 appointment. Instead, on June 5, 2002, plaintiff saw Dr. Goldstein again. Dr. Goldstein's records indicated that plaintiff said her right nipple "looks better than [the] last visit" and the doctor agreed because the nipple was only slightly crusted and oozing serous fluid, a "sort of clear to yellowish sticky fluid." Plaintiff's testimony was unclear as to whether her nipple was bleeding on that day. Dr. Goldstein was still unsure whether plaintiff's condition was dermatitis or eczema but the failure of plaintiff's condition to respond completely to the topical treatments and the presence of "firm nodules" in plaintiff's breast prompted Dr. Goldstein to refer plaintiff to a breast surgeon.

On June 5, 2002, the date of plaintiff's visit, Dr. Goldstein wrote to Dr. Glaubiger, noting that plaintiff had a draining and crusted right nipple and that plaintiff had reported the condition persisting for approximately two years. Although the condition might be eczematous, Dr. Goldstein suggested having a breast surgeon evaluate whether a biopsy was necessary. When Dr. Glaubiger received Dr. Goldstein's letter, she referred plaintiff for a mammogram.

On June 6, 2002, plaintiff completed a form at Hackensack University Medical Center on which she checked both bloody discharge and non-bloody discharge for the right breast and wrote that her right nipple was crusty and sore.

On June 7, 2002, plaintiff had a mammogram, which showed a "spiculated mass" with associated calcifications in one quadrant of the breast, plus a nearby cluster of calcifications in an area of asymmetric density near the nipple. A sonogram identified six suspicious lesions.

A radiologist reported the findings to Dr. Deborah Capko, a breast surgeon who performed fine-needle aspirations of the largest lesion and the lesion in the retroareolar lesion on the same date. Dr. Capko examined plaintiff before performing the aspirations and found excoriation and "drainage" from the right nipple, but no palpable masses, nipple "discharge," skin change or adenopathy (swelling of the lymph glands). Dr. Capko noted that plaintiff reported nipple discharge and a scaly patch that had not responded to topical treatment for approximately one year.

The preliminary findings from the aspirations were positive and highly suggestive of malignancy. The radiologist recommended a mastectomy. Dr. Capko diagnosed plaintiff with "high grade ductal carcinoma." The cytology reports and surgical pathology report indicated that the aspirated lesions were invasive carcinomas and that the largest was "nuclear grade 3."

On June 20, 2002, plaintiff had a radiological examination that indicated "borderline enlarged right axillary lymph nodes," which led the radiologist to conclude that he "cannot entirely exclude local lymph node involvement."

On July 2, 2002, Dr. Barry Sussman, a specialist in breast cancer surgery, performed a mastectomy on plaintiff's right breast. He also removed the sentinel lymph node and, after a biopsy of the sentinel node was positive, he removed additional lymph nodes from the same region. A plastic surgeon then performed a breast reconstruction. Plaintiff received radiation and chemotherapy. In November 2003, plaintiff underwent a revision of the breast reconstruction and reduction of the left breast to establish symmetry.

Dr. Alan Krutchik, a board certified oncologist, testified for plaintiff. Dr. Krutchik described Paget's Disease as a disease of the nipple or the areola, or both, that resembles crusting with "a redness which may mimic . . . eczema" and sometimes there is a yellow or clear discharge, which might become bloody. The symptoms of Paget's Disease, however, may vary. In Dr. Krutchik's opinion, Paget's Disease is "almost always associated with" breast cancer and typically presents in those with intraductal carcinoma or ductal carcinoma, which are predominant forms of breast cancer. In his opinion, if the cancer had not spread to the lymph nodes, the localization of the tumors in one portion of the breast would have made them "highly amenable" to removal by lumpectomy. He further opined that, ...


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