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$400K in damages for B.C. woman who had unnecessary mastectomy was 'inordinately high,' court finds

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A jury's award of $400,000 to a woman who had a mastectomy after being misdiagnosed with breast cancer has been substantially reduced by B.C.'s highest court, which found the damages were "wholly disproportionate."

The decision in the case was handed down Monday by a three-judge panel of the B.C. Court of Appeal, which summarized the events that led Elena Ivanova to sue Dr. Rober A. Wolber for negligence.

In 2016, Ivanova was told she had an aggressive form of breast cancer after a mass and several "satellite lesions" were discovered in her right breast. She told the court she opted to have her right breast removed because she "believed that a mastectomy was her only option to live, and her life was more important than her appearance."

But after the surgery, further testing of tissue samples revealed "no sign of cancer," according to the decision. After the mastectomy, she underwent three reconstructive surgeries.

"Ms. Ivanova testified that she experienced significant emotional pain as a result of the mastectomy to her right breast. She considered herself disfigured and ashamed of her body. Physical intimacy with her husband was adversely impacted. These feelings were not ameliorated by the reconstructive surgery," the judgment says.

"Ms. Ivanova testified to experiencing constant pain following the mastectomy and reconstructive surgeries … She said she has developed a fear and mistrust of physicians as a result of her experience."

After a trial in 2023, a jury determined that Wolber had been negligent and awarded Ivanova $400,000 in damages.

Did the misdiagnosis cause the damages?

In his appeal, the doctor did not dispute that he breached the standard of care by misdiagnosing his patient, but he did appeal on the ground that there was insufficient evidence that the negligence caused the damages.

Expert evidence at trial established that some surgery would have been required to remove the mass and lesions even though they were not cancerous, according to the judgment.

Wolber argued that it had not been proven that his patient only decided on a mastectomy because she thought she had cancer.

"Dr. Wolber’s position on appeal was that Ms. Ivanova’s failure to provide subjective evidence as to what she would have done but for Dr. Wolber’s misdiagnosis meant that she had failed to establish causation," the decision says, explaining that Wolber argued that "direct testimony from Ms. Ivanova was required on the choice she would have made had she not received the misdiagnosis."

The appeal court found that there was enough evidence for the jury to have inferred that Ivanova would have chosen a different course of treatment if she had been given an accurate diagnosis.

Further, the decision says the jury was properly instructed to consider whether Ivanova would have had a mastectomy "in any event" and "rejected this theory."

'Wholly disproportionate or shockingly unreasonable?'

After upholding the finding that Wolber's negligence caused the damages, the appeal court turned to the question of whether the amount awarded – which the doctor argued was "inordinately high" should be reduced.

On this ground, the judges found that the $400,000 award met the legal standard for the appeal court to intervene – which is that the amount is "wholly disproportionate or shockingly unreasonable."

Wolber argued that an award of between $30,000 and $90,000 would be appropriate in the circumstances. Ivanova, for her part, argued that the jury's decision was entitled to deference and that the cases Wolber presented as comparable were not, in fact, similar enough to be useful.

The court found that no comparable cases were presented by either side, but it did explain why the damages awarded should be reduced.

"There is no question that the non-pecuniary damages of $400,000 awarded by the jury represents an extraordinary award," the decision says.

"Damages awards in the range of $400,000 are generally reserved for cases in which the plaintiff has suffered truly devastating consequences."

The decision, by way of example, cited cases in which the plaintiffs were awarded similar damages – this included ones where physical injuries were described as "debilitating" and "catastrophic" and another where a woman suffered "debilitating" PTSD.

"While no two cases are the same, it is clear that the types of injuries that typically justify an award towards the upper limit are of a different magnitude than what Ms. Ivanova experienced," the decision says.

"Her injuries have undoubtedly had a profound impact on her life, however she has not been impacted to the same degree as the plaintiffs in these cases."

Damages were reduced to $250,000, which the appeal court notes is likely higher than what Ivanova would have been awarded if the matter was sent back to the trial judge. Top Stories

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