$6,600,000 – Failure to Diagnose Cancer on Time

A Philadelphia jury yesterday awarded more than $6.6 million in damages to a woman who sued two doctors for failing to diagnose breast cancer in time to halt its spread to her liver and other vital organs.

The plaintiff, Annette Urquhart, is entitled to about $6.338 million, as she was held 5 percent contributory negligent for failing to secure a third opinion.

Urquhart’s obstetrician-gynecologist, Carl held 25 percent responsible for the delayed diagnosis, and her family doctor, Earl Zipin, 70 percent, said Urquhart’s lawyer, Michael F. Barrett of Saltz Mongeluzzi & Barrett, who tried the case along with Ara Richard Avrigian of the Saltz Mongeluzzi firm.

The verdict came down yesterday after a week-long trial In 1993, Urquhart, then 34, had a fibroidectomy from the uterus. In November of that year, five weeks short of her 35th birthday, she received a six-month checkup from Della Badia.

The patient said that she complained of a lump in her right breast, but Della Badia said that his records showed her complaint to be of nipple tenderness.

A breast examination was negative, but there was no referral for mammography, no referral to a second doctor, and no plans for follow-up, Barrett said.

“This despite the fact that it was five weeks before [Urquhart] would be 35 years old, and that Dr. Della Badia’s office procedure was to give a screening mammogram to 3 5-year old women,” Barrett said.

Nine weeks later, in February 1994, Urquhart went to Zipin, complaining of a lump in her breast that she detected one or two weeks after her surgery.

According to Barrett, Zipin did no exam, ordered no mammogram, and did not seek a second opinion. Barrett said that Zipin testified that he relied on his patient’s description of Della Badia’s treatment in deciding not to investigate Urquhart’s complaint more thoroughly.

“The main theme, as it is in many medical malpractice cases, is the trust my client placed in her doctors and the responsibility they had,” Barrett said.

The lawyer for Zipin, Michael McGilvery of Wright Young & McGilvery, could not be reached for an immediate comment yesterday afternoon.

It was in March 1996 on a visit to Zipin that the doctors noticed that a lump in Urquhart’s breast had grown.

A mammogram detected breast cancer, and then doctors began aggressive treatment, with a mastectomy, chemotherapy, and radiation treatments. But by the time it was caught, Barrett said, the cancer had metastasized to Urquhart’s liver, spine, and other organs.

Barrett said the main defenses were that the delayed diagnosis was not the reason for the course of Urquhart’s cancer. But the defense did not rely on a “doubling time theory” even though it had expert reports using the theory. The “doubling time” approach measures the rate of a malignancy’s growth after diagnosis and extrapolates from that to estimate the tumor’s size when a plaintiff says it should have been diagnosed. The method has been under harsh attack in recent months.

There was one offer to settle the case, a “high-low” proposal that limited the judgment to an $800,000 maximum and a $300,000 minimum, Barrett said. The proposition was rejected, and plaintiffs stuck to a firm demand of $1.2 million through the trial.

The defense lawyer for Della Badia was David Griffith of the Harvey Pennington firm. The verdict reflected $6.2 million in pain and suffering by Urquhart and $47 1,000 in medical bills. Urquhart, who has relied on the use of a wheelchair since cancer collapsed her spinal column, appeared and testified in the case, Barrett said. before Judge Jacqueline F. Allen with a jury of 12.

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