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Overdose of Chemotherapy Drug 5-FU

$1,358,000 – Medical Malpractice/Negligence; Wrongful Death


54-year-old receives overdose of chemotherapy drug 5-FU, reducing his white blood cell count to 0.1. He developed an infection and ultimately succumbed to hypoxia, metabolic acidosis and leukopenia.

In February, following a dental checkup, plaintiffs’ decedent DB, 54, was diagnosed with Stage IV T2 N2c M0 squamous cell carcinoma at the base of his tongue. His cancer was then treated at the University of California Medical Center in San Diego by oncologist Vicky Jones, an associate professor of medicine UCSD’s Cancer Center, and otolaryngologist Robert Weisman, the Director of Head and Neck Oncology at UCSD Medical Group, as well as other healthcare professionals UCSD’s Cancer Center. Because the primary tumor was relatively small and exophytic, the doctors at UCSD felt it would be amenable to radiation and/or chemotherapy.

In mid-June 2002, Mr. B completed his chemotherapy. At a follow-up appointment, Weisman’s impression was that Mr. B was actually doing better than the average patient with base of tongue cancer.

Because Mr. B had N2 disease (nodal involvement), the UCSD doctors recommended a follow-up round of chemotherapy with Cisplatin and 5-fluorouracil (5-FU). Starting on August 12th, Mr. B began adjuvant chemotherapy. Because he did not want a peripherally inserted central catheter (PICC) line, the 5-FU was given by bolus rather than by continuous infusion. When switching from continuous infusion to bolus route, the dose of 5-FU needs to be significantly reduced. Bone marrow suppression (myelosuppression) is greatest when 5-FU is administered as an intravenous bolus, whereas it is insignificant when it is administered via PICC line. Unfortunately, the dosage of 5-FU was never decreased. Mr. B received 800 mg/mm or 1,500 mg, and this overdose occurred daily over the course of five days.

On August 25th Mr. Bernstein was admitted to the UCSD Medical Center suffering from hypoxia. His white blood cell count was 0.1, and his red blood cell count, hemoglobin and hematocrit were all low, and his platelet count was very low. Mr. Bernstein was intubated, became septic and finally died from hypoxia, metabolic acidosis and leukopenia/thrombocytopenia on August 29th.


Plaintiffs alleged that but for the negligence of Defendants in the overdose of 5-FU, Mr. B had a statistical probability of five-year survival and cure.

Defendants admitted their negligence for purposes of settlement discussions only, but alleged that their liability was limited based on their position that Mr. B’s life expectancy was less than five years. Defendants also questioned Mr. B’s projected future income losses.


Death of 54-year-old man, leaving behind wife and two sons.

Special Notes

At a mediation of the case held before the Hon. Herbert Hoffman (Ret.), Plaintiffs demanded $1.8 million to settle the matter. The Regents offered $1 million. On October 22nd, the Regents served a C.C.P. section 998 Statutory Offer in the amount of $1,258,000. The case settled for $1,358,000.




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