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Failure to diagnose breast calsification as cancer--$4 million verdict.

36-YEAR-OLD LYNDA CARROZZA UNDERWENT A BASE LINE SCREENING MAMMOGRAM AT ST. AGNES MEDICAL CENTER IN FEBRUARY 1996. The x-ray films were reviewed and interpreted by Dr. Roy Greenbaum, a radiologist. Dr. Oreenbaum examined two views of each breast and one magnified view of right breast calcifications. Dr. Greenbaum concluded that the calcifications were probably benign. He recommended that the patient return for a routine mammogram in two years. In May 1998, Carrozza underwent another screening mammogram at Hahnemann University Hospital. The x-ray films were reviewed and interpreted by Dr. Kathryn Evers, a radiologist. Dr. Evers compared the 1996 films with those just taken. She noted no change in the calcifications, which had been seen in the right breast. She too, concluded that the calcifications were benign. Dr. Evers recommended that the patient return for a mammogram in one year. In May 1999, a third radiologist reviewed a third series of films and also concluded that the calcifications in the right breast were benign. However, in August 1999, Lynda Carrozza noticed a lump in her right armpit. Weeks later, she noticed a mass on her right breast. On September 24, 1999, an oncologist examined her right breast, and found a mass measuring 9x10 cm., a 4 cm. lymph node, and bloody discharge from the nipple. A surgical oncologist performed needle biopsies in three separate locations in the breast. All three tested positive for carcinoma. Beginning in September of 1999 and continuing through the spring of 2000, Carrozza underwent eight cycles of aggressive chemotherapy in addition to a radical mastectomy, a series of reconstructive procedures, and radiation therapy, which resulted in radiation burns. In June 2000, the patient brought suit for malpractice against Drs. Greenbaum, Evers, their practices, and the hospitals involved. After a seven-day trial, a jury returned a verdict for the patient in the amount of $4 million. The jury apportioned liability at 50 percent to Dr. Greenbaum and 50 percent to Dr. Evers. The trial judge molded the verdict to include the respective practice groups and corporate entities of these physicians on the grounds of vicarious liability. The trial judge entered the verdict as $2 million against each of the two groups jointly and severally within each group. The defendants' motions for judgment notwithstanding the verdict (JNOV) for a new trial and/or remittitur were denied. The defendants appealed.

THE SUPERIOR COURT OF PENNSYLVANIA AFFIRMED THE JUDGMENT OF THE TRIAL COURT. The court held, inter alia, that the amount of damages awarded by the jury was not excessive. Although the appellate court made it clear that in its opinion the $4 million verdict was on the "high side" given the extent of the patient's injuries, her pain and suffering, and the significant reduction in her life expectancy attributed to the negligence of the defendants, the court could not say that the amount of the verdict was "unreasonable" or "so contrary to the evidence as to shock one's sense of justice." Accordingly, the court held that there were no grounds that warranted JNOV or a new trial. For the same reasons, the court concluded that a remittitur was not warranted. The court perceived the issue on appeal to be whether the plaintiffs experts offered opinions with a reasonable degree of medical certitude that the defendants' conduct breached the applicable standard of care and increased the risk of harm to the patient. It was not necessary that the plaintiff introduce any medical evidence in addition to that already adduced to prove the defendants' conduct increased the risk of harm--to establish that the negligence asserted resulted in the plaintiffs injury. Rather, once, the jury was apprised of the likelihood that the defendants' conduct resulted in the harm alleged by the plaintiff; the issue was one for the jury, and not the medical experts. Analogous is the failure of a physician to timely diagnose breast cancer. Although timely detection of breast cancer may well reduce the likelihood that a patient may have a terminal result--even with timely detection and optimal treatment--a certain percentage of patients (unfortunately) will succumb to the cancer. This statistical factor, however, does not preclude a plaintiff from prevailing in a law suit. Rather, once there is testimony that there was a failure to detect the cancer in a timely manner, and that such failure increased the risk that the patient would have either a shortened life expectancy or suffer harm, then, it was a question of fact for the jury whether they believed by a preponderance of the evidence, that the acts or omissions of the physician were a substantial factor in bringing about the harm to the plaintiff. The harm suffered to the patient involved not only the loss of the affected breast but necessary surgery to the patient's good breast to make her appear more symmetrical. Carrozza v. Greenbaum, 2004 WL 2850604 A.2d--PA (2004)
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Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Geographic Code:1USA
Date:Jan 1, 2005
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