$950,000 Settlement for Medical Malpractice
In a case involving a false-positive diagnosis of breast cancer, the plaintiff alleged that she had both of her breasts unnecessarily removed due to an incorrect pathology analysis of a biopsy sample. The plaintiff had been diagnosed many years before as having a BRCA2 genetic mutation, which is a genetic indicator that she had an increased risk of developing breast cancer, and thus had chosen to undergo enhanced surveillance to attempt to detect any breast cancer early. Years later, she underwent a biopsy of a mass seen on MRI in her breast, which resulted in a diagnosis of cancer by the defendant pathologists. After being informed she had cancer, the plaintiff underwent a bilateral mastectomy procedure to remove both of her breasts, only to discover shortly thereafter that the mass found in her breast was a benign condition known as microglandular adenosis, which by itself would not require the removal of her breasts.
The defendants attempted to argue that the plaintiff’s BRCA2 genetic mutation constituted a “preexisting condition” under Scafidi v. Seiler, to attempt to lessen their own responsibility for her injuries. Essentially, the defendants argued that because many women diagnosed with a BRCA mutation elect to undergo prophylactic mastectomies to prevent breast cancer from later developing, the plaintiff was not harmed by having to undergo the invasive surgeries following the defendants’ negligence. Prior to trial, Carol L. Forte, Esq. filed a motion to bar such an argument and to bar the defendants from seeking a Scafidi allocation to the pre-existing condition, arguing that the plaintiff’s BRCA2 mutation was a “pre-preexisting condition” that was not itself capable of causing the harm and thus was not a “preexisting condition” under the Scafidi line of cases. The Court, in a written opinion, granted plaintiff’s motion, ruling that neither the BRCA2 mutation nor the microglandular adenosis constituted preexisting conditions under Scafidi. The case settled shortly thereafter on the date of trial.