Delayed diagnosis leads to $2.65M verdict
Published: December 8, 2011
Tag: Tucker Griffin Barnes
A Fairfax County jury has returned a $2.65 million verdict against a radiologist whose admitted negligence led to a delay in diagnosis of breast cancer for a 54-year-old woman, even though the woman had no additional medical bills and continued to work at the time of trial.
Arlington lawyer William E. Artz, the patient’s attorney, said the size of the Nov. 11 verdict is mostly attributable to the mental anguish suffered by the woman, who now faces an increased risk of the spread of cancer and a reduced life expectancy.
The radiologist conceded she was negligent in failing to spot the cancer as alleged in the complaint, Artz said. She defended the case solely on the issue of causation, with experts who testified that a 13-month delay in diagnosis did not change the expected outcome for the patient, according to Artz.
The case centered on a screening mammogram performed on Sept. 15, 2008. The radiologist missed a left breast abnormality and failed to order follow-up imaging studies or a referral for a biopsy, which would have revealed the breast cancer in time for curative treatment, Artz said.
The patient returned to the radiologist for her annual screening mammogram 13 months later. A focal symmetry in the left breast appeared more prominent. A diagnostic mammogram and ultrasound showed two masses in the left breast. A left breast biopsy revealed Stage IIIA breast cancer.
The patient underwent neo-adjuvant chemotherapy, a left quadrantectomy with reconstruction, radiation and hormone therapy. At the time of trial, there was no evidence of metastasis.
As a result of the misread mammogram, there was a 13-month delay in the diagnosis and treatment of the patient’s breast cancer. The delay allowed the cancer to progress from a curable (Stage IIA or IIB) to an incurable (Stage IIIB or IIIC), the plaintiff alleged. Artz said the tumor grew from 2.5 cm to 8 cm during the 13 months.
The defense experts argued that the breast cancer was slow-growing with no evidence of metastasis at the time of trial. They relied in part on Adjuvant Online, a computer database used by oncologists to determine a patient’s likely 10-year prognosis with chemotherapy after initial treatment, Artz said.
According to the defense experts, the patient had a 10-year survival rate of up to 70 percent. The plaintiff’s experts contended her 10-year survival rate was only 35 percent.
Despite her cancer diagnosis, the plaintiff continued to work, so there were no past lost wages. Since the plaintiff would have required the same treatment if her cancer had been timely diagnosed, there were no past medical bills.
The verdict was based solely on mental anguish and future medical expenses, Artz said. Both the patient and her husband testified about her fears for the future. “From a jury’s perspective, I think the mental anguish component is a fairly obvious one, even without her testimony,” Artz said.
The plaintiff’s experts estimated $250,000 to $300,000 in future medical bills attributable to the delayed diagnosis. Artz said he asked the jury for $2.5 million for mental anguish.
The four-woman, three-man jury deliberated for an hour and a half before returning the verdict for $2.65 million, Artz said.
Defense lawyers Richard L. Nagle and Travis W. Markley of Fairfax contend in a post-trial motion that the verdict is excessive, according to Artz. But he disagrees. “You are taking away 25 percent of a patient’s life with this conceded negligence,” he said.
Nagle could not be reached for comment by press time.