Dates of Settlements: September 3, 1998 & July 31, 2002
Medical Expenses: Plaintiff’s past medical expenses were $27,689.47. The cost of gestational surrogacy was $71,285.07. The cost of future gestational surrogacy (for additional children) was unknown. The cost other future medical expenses was unknown.
Total Economic Loss: $ 490,042.82 (estimated)
Demand: Mediation September 8, 1998 – Demand was made for $3,000,000
Mediation July 31, 2002 – Demand was made for remaining policy limits of $1,250,000
Offer: No offers were made prior to mediation by either defendant.
Settlement: $1,150,000 (combined amount from both defendants)
Report Submitted By: Perey Law Group, PLLC
Facts
This case involved a woman who was only 24 years old when she underwent a radical hysterectomy six months after she was married to her high school sweetheart. The radical hysterectomy took Jane Doe’s ability to carry her own children and was caused by the negligent interpretation of Pap smear slides that resulted in a delayed diagnosis of cervical cancer. Plaintiffs contended that if defendants Doe Laboratory #1 and Doe Laboratory #2 had interpreted Jane Doe’s Pap smear slides correctly she would have easily been cured of her developing cervical cancer.
Jane Doe lost her ability to carry her own children because a radical hysterectomy was performed to “cure” her developing cervical cancer. Jane and John Doe still wanted children so much that they were willing to endure the expense and rigors of a process called “gestational surrogacy” where Jane Doe’s eggs were harvested (her ovaries were not removed during the hysterectomy) and combined with John Doe’s sperm to create embryos. The embryos were then implanted through in vitro fertilization (IVF) into a surrogate who contracted to carry and give birth to the baby or babies. Amazingly, this process allowed Jane and John Doe to eventually have biological twins.
Jane Doe had annual gynecologic examinations and Pap smears from 1989 through 1995. Defendant Doe Laboratory #1 provided clinical laboratory services (cytologic screening) for Jane Doe’s November 1992 and November 1993 cervical Pap smears and defendant Doe Laboratory #2 provided cytologic screening for Jane Doe’s November 1994 and November 1995 cervical Pap smears. Plaintiffs contended that each of the Pap smear slides contained abnormal cells, but the cytotechnologists at Doe Laboratory # 1 and Doe Laboratory #2 erroneously interpreted all Pap smear slides as being “within normal limits.”
Injuries
In September 1996, Jane Doe changed her gynecologic health care to a private practitioner because she had obtained health care insurance through her new husband’s employment. A Pap smear obtained during her first visit with the new provider led to the diagnosis of Stage IB invasive cervical cancer. The only treatment for this degree of invasive cervical cancer is radical hysterectomy and lymphadenectomy, which was performed by gynecologic oncologist Howard Muntz, M.D., at Virginia Mason Medical Center in Seattle, Washington. This procedure took Jane Doe’s ability to carry her own children, but her ovaries were left in her body to preserve the possibility of harvesting eggs for gestational surrogacy.
Procedural History
Defendant Doe Laboratory #1 failed to appear in this case and a default judgment in the amount of $5,414,454.00 was entered against them. Plaintiffs reached a settlement with Defendant Doe Laboratory #2 at mediation with Gary N. Bloom in September 1998. Doe Laboratory #1 stopped doing business and most of its employees and assets were acquired by another laboratory. Plaintiffs brought a second lawsuit based upon theories of corporate successor liability against the acquiring laboratory. Eventually, plaintiffs learned that a policy of insurance was available for claims made against Doe Laboratory #1 for incidents occurring during 1992 and 1993. That insurer hired Washington counsel and took the defense of the case under a “reservation of rights” asserting they were prejudiced by the failure of Doe Laboratory #1 to inform them of the original Yakima County lawsuit. An agreement was reached to set aside the $5,414,454.00 default judgment and proceed with litigation in Yakima County Superior Court.
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