Defense Verdict in Breast Cancer Suit

A jury ruled for the defense in a lawsuit in which the plaintiff had undergone a double mastectomy after learning that invasive cancer originating in her left breast had spread to 24 nearby lymph nodes. After a 9-day trial before Philadelphia Common Pleas Judge Sheldon Jelin in D'Orazio v. Parlee & Tatem Radiologic Associates Ltd., jurors deliberated for 2 1/2 days before delivering a verdict on April 27. The verdict relieved three radiologists and two hospitals of liability for plaintiff Shirley W. D'Orazio's alleged reduced chances of survival due to the advanced stage of the disease at the time of diagnosis.

Attorney Naomi Plakins of Plakins Rieffel & Ray in Doylestown, PA, represented defendant radiologist Henry Randolph Tatem III as well as defendant company Parlee & Tatem Radiologic Associates. Plakins characterized the case as a battle of the experts since the plaintiff and the defendants relied on experts to establish the applicable standard of care as well as causation.

According to defendants' trial brief, D'Orazio underwent a series of routine mammograms from 1988 to 1998, when she was diagnosed with infiltrating lobular carcinoma. Lobular carcinoma is a relatively rare form of breast cancer, accounting for about 10% of all cases. It spreads by proceeding in a single-file fashion, resulting in fingerlike projections into normal tissue. The 1988 mammogram did not show any suspicious abnormality, the defendants' trial brief stated. Similarly, a 1990 mammogram, conducted at defendant Frankford Hospital-Torresdale Division in Philadelphia and interpreted by defendant radiologist Robert Bronstein, showed no suspicious abnormalities or changes, according to defendants.

D'Orazio's next mammogram was performed in 1994 at the same hospital. Radiologist Bruce Lehrman interpreted the image as normal. According to Plakins, the plaintiff's expert radiologist agreed with that reading, and Lehrman was released from the case. It was the 1990 mammogram, along with two more that were conducted in 1995 and 1997, that the plaintiff focused on in her suit. The 1995 radiograph was reviewed and interpreted by Tatem at defendant Doylestown Hospital's Women's Diagnostic Center. In 1997, D'Orazio underwent the third mammogram at issue, and it was interpreted by defendant radiologist Amy Whitley, also an employee of Parlee & Tatem. Both mammograms were interpreted as normal.

But in 1998, the plaintiff found a lump in her breast. A subsequent mammogram at the Women's Diagnostic Center revealed distortion in the left breast, plaintiff's brief stated. Shortly thereafter, D'Orazio underwent a breast biopsy and then a modified radical mastectomy. While no residual tumor was found in her left breast, 24 of 34 nearby lymph nodes contained cancerous tissue. In 2000, D'Orazio underwent removal of her right breast to avoid a recurrence of the cancer. Four and one-half years after her diagnosis, the plaintiff had not suffered a recurrence.

When D'Orazio's cancer was diagnosed, it had reached Stage 3, meaning that her prognosis was poor. According to Plakins, D'Orazio had only a 20% chance of event-free 5-year survival (a 20% cure rate). The plaintiff contended at trial that the films taken in 1990, 1995 and 1997 actually did show a suspicious density that merited follow-up either by ultrasound or by biopsy or both. Plaintiff's theory was that by delaying the diagnosis of her breast cancer, the defendants dramatically increased her risk of harm and that if the cancer had been diagnosed in 1990, it would have been localized rather than invasive, and plaintiff would have had nearly a 100% cure rate. Had the cancer been detected in 1995, the plaintiff claimed, it would have been in Stage 1 and would still have been highly curable, though less than 100%. And finally, as to the 1997 mammogram, plaintiff argued that, even then, her chances for non-recurrence would have been better.

According to defense attorney Plakins, the case revolved around the radiologists' readings of the mammograms. The defendants' three radiological experts agreed that there was an increased density evident in the left breast on the 1990, 1995 and 1997 mammograms. But the defendants contended that the density remained stable over a long period and did not raise a suspicion of cancer.

A key break for the defense was the dismissal of the radiologist who read the 1994 mammogram. The fact that that mammogram showed a density, Plakins said, demonstrated to jurors that a mere density was not by itself worrisome. Additionally, the presence of the cancer in the 1994 radiograph, coupled with the normal interpretation, showed that a physician's missing a diagnosis was not necessarily a violation of the applicable standard of care, according to the defense. And it was also argued that mammograms are not foolproof, since false negatives occur 10% to 15% of the time.

Kim Plouffe of German Gallagher & Murtagh, who represented Bronstein, said that all the defendants argued that lobular carcinoma is hard to find in a mammogram, according to medical literature.

Regarding causation, Plakins said she typically does not use cancer growth rates to determine when the disease would first have been detectable because the usual method for doing so-called doubling time theory ' is problematic and subject to attack. But in D'Orazio, she relied on a modified version of the method. Instead of trying to pin down the precise rate of growth, the defense sought to demonstrate at trial, using objective tests, that the plaintiff's cancer grew slowly. Turning to the plaintiff's assertion that none of her lymph nodes contained cancer in 1990 but that 24 did in 1998, the defendants' experts argued that given the slow growth of the cancer, the plaintiff's claim was impossible.

The plaintiff demanded $2.5 million. None of the defendants offered to settle the suit. The jury verdict ended with a ten-to-two vote after jury members asked the judge a number of questions during their deliberations. Richard Kolb of White & Williams, who served as counsel for Whitley, said he thought the verdict reflected an understanding of the inadequacy of medicine in detecting and treating breast cancer. The findings were very subtle, Kolb said, and he speculated that the women jurors were aware that mammograms simply do not pick up every incidence of breast cancer.

A jury ruled for the defense in a lawsuit in which the plaintiff had undergone a double mastectomy after learning that invasive cancer originating in her left breast had spread to 24 nearby lymph nodes. After a 9-day trial before Philadelphia Common Pleas Judge Sheldon Jelin in D'Orazio v. Parlee & Tatem Radiologic Associates Ltd., jurors deliberated for 2 1/2 days before delivering a verdict on April 27. The verdict relieved three radiologists and two hospitals of liability for plaintiff Shirley W. D'Orazio's alleged reduced chances of survival due to the advanced stage of the disease at the time of diagnosis.

Attorney Naomi Plakins of Plakins Rieffel & Ray in Doylestown, PA, represented defendant radiologist Henry Randolph Tatem III as well as defendant company Parlee & Tatem Radiologic Associates. Plakins characterized the case as a battle of the experts since the plaintiff and the defendants relied on experts to establish the applicable standard of care as well as causation.

According to defendants' trial brief, D'Orazio underwent a series of routine mammograms from 1988 to 1998, when she was diagnosed with infiltrating lobular carcinoma. Lobular carcinoma is a relatively rare form of breast cancer, accounting for about 10% of all cases. It spreads by proceeding in a single-file fashion, resulting in fingerlike projections into normal tissue. The 1988 mammogram did not show any suspicious abnormality, the defendants' trial brief stated. Similarly, a 1990 mammogram, conducted at defendant Frankford Hospital-Torresdale Division in Philadelphia and interpreted by defendant radiologist Robert Bronstein, showed no suspicious abnormalities or changes, according to defendants.

D'Orazio's next mammogram was performed in 1994 at the same hospital. Radiologist Bruce Lehrman interpreted the image as normal. According to Plakins, the plaintiff's expert radiologist agreed with that reading, and Lehrman was released from the case. It was the 1990 mammogram, along with two more that were conducted in 1995 and 1997, that the plaintiff focused on in her suit. The 1995 radiograph was reviewed and interpreted by Tatem at defendant Doylestown Hospital's Women's Diagnostic Center. In 1997, D'Orazio underwent the third mammogram at issue, and it was interpreted by defendant radiologist Amy Whitley, also an employee of Parlee & Tatem. Both mammograms were interpreted as normal.

But in 1998, the plaintiff found a lump in her breast. A subsequent mammogram at the Women's Diagnostic Center revealed distortion in the left breast, plaintiff's brief stated. Shortly thereafter, D'Orazio underwent a breast biopsy and then a modified radical mastectomy. While no residual tumor was found in her left breast, 24 of 34 nearby lymph nodes contained cancerous tissue. In 2000, D'Orazio underwent removal of her right breast to avoid a recurrence of the cancer. Four and one-half years after her diagnosis, the plaintiff had not suffered a recurrence.

When D'Orazio's cancer was diagnosed, it had reached Stage 3, meaning that her prognosis was poor. According to Plakins, D'Orazio had only a 20% chance of event-free 5-year survival (a 20% cure rate). The plaintiff contended at trial that the films taken in 1990, 1995 and 1997 actually did show a suspicious density that merited follow-up either by ultrasound or by biopsy or both. Plaintiff's theory was that by delaying the diagnosis of her breast cancer, the defendants dramatically increased her risk of harm and that if the cancer had been diagnosed in 1990, it would have been localized rather than invasive, and plaintiff would have had nearly a 100% cure rate. Had the cancer been detected in 1995, the plaintiff claimed, it would have been in Stage 1 and would still have been highly curable, though less than 100%. And finally, as to the 1997 mammogram, plaintiff argued that, even then, her chances for non-recurrence would have been better.

According to defense attorney Plakins, the case revolved around the radiologists' readings of the mammograms. The defendants' three radiological experts agreed that there was an increased density evident in the left breast on the 1990, 1995 and 1997 mammograms. But the defendants contended that the density remained stable over a long period and did not raise a suspicion of cancer.

A key break for the defense was the dismissal of the radiologist who read the 1994 mammogram. The fact that that mammogram showed a density, Plakins said, demonstrated to jurors that a mere density was not by itself worrisome. Additionally, the presence of the cancer in the 1994 radiograph, coupled with the normal interpretation, showed that a physician's missing a diagnosis was not necessarily a violation of the applicable standard of care, according to the defense. And it was also argued that mammograms are not foolproof, since false negatives occur 10% to 15% of the time.

Kim Plouffe of German Gallagher & Murtagh, who represented Bronstein, said that all the defendants argued that lobular carcinoma is hard to find in a mammogram, according to medical literature.

Regarding causation, Plakins said she typically does not use cancer growth rates to determine when the disease would first have been detectable because the usual method for doing so-called doubling time theory ' is problematic and subject to attack. But in D'Orazio, she relied on a modified version of the method. Instead of trying to pin down the precise rate of growth, the defense sought to demonstrate at trial, using objective tests, that the plaintiff's cancer grew slowly. Turning to the plaintiff's assertion that none of her lymph nodes contained cancer in 1990 but that 24 did in 1998, the defendants' experts argued that given the slow growth of the cancer, the plaintiff's claim was impossible.

The plaintiff demanded $2.5 million. None of the defendants offered to settle the suit. The jury verdict ended with a ten-to-two vote after jury members asked the judge a number of questions during their deliberations. Richard Kolb of White & Williams, who served as counsel for Whitley, said he thought the verdict reflected an understanding of the inadequacy of medicine in detecting and treating breast cancer. The findings were very subtle, Kolb said, and he speculated that the women jurors were aware that mammograms simply do not pick up every incidence of breast cancer.