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Jury award upheld for breast cancer ‘delayed diagnosis’

A woman’s emotional distress over delayed diagnosis of her breast cancer supported a jury award of $2.65 million, a Fairfax Circuit Court has ruled.

A radiologist conceded she had failed to spot the cancer on the woman’s mammogram.

During the 13 months between the erroneously “clean” cancer screening and the woman’s later diagnosis, her condition progressed from a treatable Stage I or II to a far more dangerous Stage III, and her tumor increased in size from 2.5 centimeters to 8 centimeters, according to an Aug. 8 opinion by Fairfax Circuit Judge Jonathan Thacher.

Thacher said the defendants could not challenge the verdict as improperly based on lost life expectancy, as that theory became the law of the case when the defendants failed to object at trial and offered their own jury instructions on the issue.

The physical advancement of the cancer was actionable, and the jury was entitled to consider the plaintiff’s emotional damages that arose from the physical injury, the judge said in Macdonald v. Corrigan. The court reduced the award in accordance with Virginia’s med-mal cap under Va. Code § 581.15.
–Deborah Elkins

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