July 29, 2019

For the second time in a Maryland medical malpractice breast cancer misdiagnosis case, the Court of Special Appeals of Maryland (“Maryland Appellate Court”) overturned a Maryland medical malpractice jury’s verdict (this time overturning a jury verdict in favor of the defendants; the first appeal overturned a verdict for the plaintiff), holding that the trial court misinterpreted its prior mandate and erred when it did not hold a new trial on all issues. The Maryland Appellate Court also concluded that the trial court abused its discretion in precluding the plaintiff from offering testimony about her left breast mastectomy as an element of damages (the plaintiff’s breast cancer was in her right breast only) and abused its discretion in part when it precluded all causation testimony from the plaintiff’s expert.

The Underlying Facts

In 2007, the plaintiff discovered a mass in her right breast for which the defendant gynecologist examined her and ordered a mammogram and sonogram. The radiology report found no mammographic or sonographic evidence of malignancy. The plaintiff continued to see the defendant gynecologist from 2008 to 2011 for annual gynecological appointments, during which the plaintiff alleged she was reassured by the defendant that the mass was a benign fibrous cyst and nothing to worry about. The plaintiff alleged that the mass seemed to be getting bigger over time.

In March 2012, a nurse practitioner examined the plaintiff and ordered a mammogram and sonogram, the results of which led to a biopsy. The biopsy resulted in a diagnosis of cancer in the plaintiff’s right breast (ductal carcinoma in situ (“DCIS”), with an estimated maximum dimension of nine centimeters. No abnormalities were detected in the plaintiff’s left breast.

In June 2012, after consulting with a breast surgeon, the plaintiff underwent a bilateral mastectomy. The parties agree that the right breast mastectomy was medically necessary and that the left breast mastectomy was not medically necessary but the plaintiff alleged that she underwent the left breast mastectomy to mitigate damages flowing from the need to undergo the right breast mastectomy as a result of the delay in diagnosis of the cancer in her right breast.

A Maryland medical malpractice jury awarded the plaintiff past medical expenses in the amount of $35,000.00 and noneconomic damages in the amount of $150,000.00, for a total of $185,000.00. The defendants appealed, raising four issues on appeal. The Maryland Appellate Court decided the first issue only, finding that the trial court erred by denying the defendants’ motion in limine to preclude testimony regarding the plaintiff’s reduced chance of survival as a result of the delay in her diagnosis, because her chance of survival, according to the testimony, remained at least 88 percent (the Maryland Appellate Court stated that the improperly-admitted testimony at trial about the plaintiff’s distress regarding her fear of death “would have an obvious effect on any jury”). The Maryland Appellate Court reversed the trial court’s judgment and remanded for further proceedings wherein such evidence would not be admitted. The Maryland Appellate Court determined that its reversal on that ground meant that it need not address the other issues on appeal.

On remand, the parties disagreed about whether the circuit court should hold a new trial on all issues or only on non-economic damages. The circuit court ordered that the retrial would be limited to non-economic damages. The circuit court judge also decided to preclude testimony from the plaintiff’s only causation expert. The defendants therefore moved for summary judgment, and the circuit court granted summary judgment to the defendants. The second appeal followed.

The Second Appeal

The Maryland Appellate Court held: “The panel’s determination that its reversal on the issue of [the plaintiff’s] loss of chance of survival obviated the need to address these other issues necessarily meant that the new trial would be an entirely new start, unaffected by any of these alleged errors. We must, therefore, reverse once again and remand for a new trial on all issues.”

The Maryland Appellate Court further held: “If we had not remanded this case for a new trial, we nonetheless would have remanded it based on the circuit court’s unexplained decision to preclude [the plaintiff’s expert’s] testimony regarding the treatment options [the plaintiff] would have had to treat the cancer in her right breast. Based on [the expert’s] testimony about his qualifications and experience, we are unable to determine a proper basis for excluding that testimony and, therefore, conclude that the circuit court abused its discretion in doing so … [the expert’s] unrebutted testimony was that he had experience treating hundreds of DCIS patients with tumors of varying sizes, and that it was his role to coordinate the treatment with other specialists, including surgeons. We fail to see on this record how that did not give him “sufficient familiarity” with the subject to opine as to what surgical treatment options would have been available to [the plaintiff] … On remand, [the expert] should be permitted to testify regarding the difference in available treatment options for the cancer in [the plaintiff’s] right breast, as between lumpectomy and mastectomy, as a result of the delay in diagnosis.”

The Maryland Appellate Court also held: “We agree with [the plaintiff] that the circuit court abused its discretion in granting the motion in limine. On remand, [the plaintiff] should be permitted to argue that the delay in diagnosis of her cancer was a proximate cause of her left breast mastectomy and, therefore, that the jury should consider that in its award of damages. Whether to award damages based on the left breast mastectomy is a proper question for the jury … We conclude that that there is sufficient evidence in the record to establish a “reasonable probability” that [the defendants’] conduct was a cause in fact and a legal cause of [the plaintiff’s] injuries, thus creating a question of fact for the jury … On remand, [the plaintiff] should be permitted to present otherwise admissible evidence that she underwent the left breast mastectomy to mitigate damages flowing from the need to undergo the right breast mastectomy as a result of the delay in diagnosis of the cancer in her right breast.” (The plaintiff argued that (1) but for the delayed diagnosis of the cancer in her right breast, it could have been treated with a lumpectomy; (2) her right breast mastectomy, unlike a lumpectomy, would have left her with asymmetrical breasts if she had not also undergone a left breast mastectomy; and (3) she underwent the left breast mastectomy to obtain symmetry between her reconstructed breasts. According to the plaintiff, this procedure mitigated her damages, which would have been greater if she were able to argue that the delay in diagnosis had left her with asymmetrical breasts.)

Source Suesse v. Luecke, No. 0013 September Term, 2018.

If you or a family member may be the victim of breast cancer misdiagnosis in Maryland or in another U.S. state, you should promptly consult with a Maryland medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your breast cancer misdiagnosis claim for you and represent you or your family member in a cancer misdiagnosis medical malpractice case, if appropriate.

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