B.C. jury's $400Gs award for mastectomy after cancer false alarm reduced on appeal

Article content

B.C.’s Appeal Court has reduced a $400,000 pain and suffering award to a woman who sued her doctor for the cancer misdiagnosis that led to her choosing a mastectomy.

The award was reduced to $250,000 by the panel of three judges, who ruled in reasons for judgment that $400,000 was “wholly disproportionate.”

The jury’s original award was close to the $450,000 maximum allowed for such damages at the time of the May 2023 trial. That maximum was set by the courts in 1978 at $100,000 and has risen with inflation since.

“An award (near the upper limit is justified by debilitating injuries that have catastrophic effects on the plaintiff’s ability to function,” wrote Justice Ronald A. Skolrood, with Justices David C. Harris and Patrice Abrioux agreeing. “While significant, the appellant’s injuries here do not rise to that threshold. Accordingly the damage award is reduced to $250,000.”

That is “likely above what would be awarded by a judge alone, but such deviation is permitted based again on the respect shown for the jury’s findings,” Skolrood wrote. “An amount of $250,000 maintains sufficient deference for those findings while avoiding an award that is shockingly unreasonable and unsustainable.”

Elena Ivanova had a mastectomy of her right breast in March 2016, after her doctor, Dr. Robert Wolber, prepared a report that included “what she understood to be a diagnosis of a rare and aggressive form of breast cancer,” according to the judgment.

“After the surgery was performed, the excised tissue was examined and it showed no sign of cancer,” it said.

Ivanova sued Wolber and the surgeon for negligence and a jury in May 2023 awarded her $400,000, Skolrood wrote.

The jury also found the surgeon wasn’t liable, the judgment said.

Ivanova found a lump on her breast on Jan. 31, 2016, and less than two weeks later, she had a mammogram and ultrasound that showed a large mass and smaller masses and cysts.

About three weeks later, a biopsy was done and the sample sent to Wolber.

Wolber sent the specimen to six other pathologists at Lions Gate Hospital for review and all agreed it contained “invasive carcinoma,” but they didn’t agree on which type of subtype of carcinoma, the judgment said.

About three weeks later, on March 10, 2016, Wolber wrote his report that included the diagnosis of “invasive metaplastic carcinoma” but said another biopsy should be done for a more precise diagnosis.

Five days later, Ivanova met with the surgeon and she said she understood she had an aggressive form of cancer and “removing the cancer was a matter of life or death” and “the only way to survive” was to have a full mastectomy as soon as possible, the judgment said.

The mastectomy was done on March 24, 2016, two months after she found the lump.

About two weeks later, the tissue sample tested negative for cancer at the B.C. Cancer agency and Wolber amended his report to include that information. His report also stated he had earlier recommended a further biopsy not a mastectomy.

But an expert called by Ivanova testified Wolber’s original report “unequivocally communicated the presence of a metaplastic breast carcinoma. This was below the standard of care of a practising surgical pathologist.”

That expert testified Wolber recommended a biopsy, which would have been “substandard treatment for metaplastic carcinoma,” he testified.

A medical expert called by Wolber testified that had a biopsy or lumpectomy been done, the mass would have been properly diagnosed, and his assessment of the biopsy sample was reasonable and noted all six other pathologists he consulted found the biopsy showed invasive carcinoma, according to the reasons for judgment.

Wolber’s insurance company also appealed on a second ground, whether the jury erred in finding that “Wolber’s breach of the standard of care caused Ms. Ivanova to undergo a mastectomy rather than a partial mastectomy,” according to the judgment.

But Skolrood wrote that he was “satisfied that there was sufficient evidence” for the jury to conclude she would not have chosen a full mastectomy if it weren’t for the misdiagnosis.

Bookmark our website and support our journalism: Don’t miss the news you need to know — add VancouverSun.com and TheProvince.com to your bookmarks and sign up for our newsletters here.

You can also support our journalism by becoming a digital subscriber: For just $14 a month, you can get unlimited access to The Vancouver Sun, The Province, National Post and 13 other Canadian news sites. Support us by subscribing today: The Vancouver Sun | The Province.