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BERGER v. BIER, M.D.

This case involved the claimed lengthy delay in the diagnosis of ovarian cancer resulting in the death of a 32-year-old wife and mother of a one-year-old child.  Dr. Bier was a radiologist who read and interpreted a pelvic ultrasound in order to determine the status of an ovarian mass, which had been previously diagnosed and was being monitored by plaintiff’s OB/GYN (also a defendant), her perinatologist, (also a defendant) and her primary care physician (also a defendant).  The allegations against Dr. Bier were that he failed to appreciate the nature of the abnormally enlarged ovaries and failed to adequately report the abnormality because he failed to obtain the appropriate diagnostic studies to define the ovarian masses.  Plaintiffs contended while the mass had been appreciated earlier by other physicians and had been monitored, Dr. Bier had the “last clear chance” to provide information sufficient to allow the other physicians to obtain a definitive diagnosis and perform curative surgery, which had at least a 70% to 80% success rate as of the time Dr. Bier performed his study.

Defense of Dr. Bier was able to establish that the ultrasound reading was appropriate, within the standard of care, and contained all information requested by the clinicians and all information needed to allow them to make a diagnosis and recommend a treatment regimen immediately.  Furthermore, Dr. Bier was able to establish that his study was both adequate and sufficient to define the nature and extent of the ovarian masses.

The jury returned a defense verdict on behalf of Dr. Bier and found the perinatologist negligent but not responsible for the death of plaintiffs’ decedent.  The OB/GYN and PCP were found negligent, and their negligence was responsible for the death of plaintiffs’ decedent.  The jury awarded $4,000,000 in damages.