Recovery of Noneconomic Damages in Delayed Diagnosis of Cancer Cases

• Publication year: 1998
• Pages: 95
• Citation: Vol. 27 No. 11 Pg. 95

27 Colo.Law. 95 Colorado Lawyer 1998.

1998, November, Pg. 95. Recovery of Noneconomic Damages in Delayed Diagnosis of Cancer Cases

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95

Vol. 27, No. 11, Pg. 95

The Colorado Lawyer
November 1998
Vol. 27, No. 11 [Page 95]

Specialty Law Columns
Tort and Insurance Law Reporter
Recovery of Noneconomic Damages in Delayed Diagnosis of Cancer Cases
by William J. Brady, Lisa K. Mayers

Column Ed.: William P. Godsman of The Law Office of William Godsman, Denver - (303) 863-9011

Editor's Note

The recent Colorado Supreme Court case of Boryla v. Pash discussed in this article, is expected to have a substantial impact in the area of medical malpractice in Colorado. For a related article on the Boryla case, see the "Health Law Forum" at page 85 in this issue of The Colorado Lawyer

This article was written by William J. Brady, a shareholder and director, and Lisa K. Mayers, an associate, of Grimshaw & Harring, P.C., Denver, (303) 839-3800. The authors represented the plaintiff in the case of Boryla v. Pash, discussed in this article. The authors wish to thank Rebecca Adams, a student at CU School of Law, for her assistance with this article.

Physicians in Colorado may be liable for emotional distress damages if they fall below the legal standard of care in failing aggressively to pursue and definitively diagnose symptoms of cancer or other life-threatening diseases in a timely and responsible manner. As long as an increased risk of harm develops from the unchecked growth of cancer (even though the risk is unlikely to materialize), medical malpractice plaintiffs in Colorado have a cause of action for emotional distress resulting from a delayed diagnosis. This article examines the recent opinion of the Colorado Supreme Court in Boryla v. Pash and its likely impact on physicians and patients in Colorado.1

Factual Background
Of Boryla

In Boryla, the patient contacted her family physician after performing a breast self-examination in which she discovered a lump in her right breast. The family physician, after confirming the presence of the mass, referred the patient to a surgeon for further evaluation. Rather than performing the nationally recognized three-prong test of physical examination (including manual palpation), mammogram, and fine needle aspiration before proceeding to surgery, the defendant physician, after attempting to manually palpate the lump, proceeded to a surgical biopsy. The results were reported as negative.

When the lump did not resolve, the patient returned to the surgeon on two occasions, reporting persistence of her mass. Ninety-two days later, the physician, for the first time, ordered that a mammogram be performed. The mammogram revealed a very large spiculated lesion highly suspicious for cancer. A second biopsy revealed the presence of infiltrating, intraductal adenocarcinoma, the most common form of breast cancer.

The patient underwent a radical mastectomy and surgical removal of several lymph nodes from under her arm, one of which was positive for cancer. Thereafter, a prescribed course of adjuvant therapy, including chemotherapy and tamoxifen, followed. The surgery was successful and there has been no recurrence to date. The patient brought suit against the surgeon for hedonic damages, including emotional distress and impairment of the quality of life, arising from the increased risks of cancer and tumor growth during the delay.2

Significance of Boryla

Medical practitioners and patients alike generally accept that early detection of cancer is a key factor to the successful treatment and prevention of breast cancer and other similar diseases.3 The Colorado Supreme Court, through the Boryla opinion, has endorsed the importance of early detection of life-threatening diseases by acknowledging the potential liability of physicians who do not adhere to a reasonable standard of care and thereby deprive their patients of earlier treatment. This opinion will encourage physicians and health care providers, particularly cost-conscious HMOs, to aggressively test, identify, and treat any and all potential symptoms of cancer and other life-threatening illnesses at the earliest possible date.

Health...