$3,000,000 Wrongful Death

Injuries: Ovarian cancer, pain and suffering, wrongful deathAmount of Award: $3,000,000

Plaintiffs’ Attorney: Marc L. Breakstone Boston, Massachusetts

Court: Middlesex Superior Court

Details of the Case

Plaintiff first visited defendant gynecologist in February 1999 when she was 44 years old.  She informed him that she had a strong family history of breast cancer (mother, cousin at age 28, and grandmother) and ovarian cancer (grandmother and possibly mother).  Plaintiff herself was diagnosed with an early stage of breast cancer in January 2000.  Her sister was diagnosed with invasive breast cancer in 1999.  It was recommended that plaintiff receive regular surveillance for breast and ovarian cancer, which she did.

On at least three visits with defendant gynecologist between February 1999 and August 2001, plaintiff expressed a desire to have her ovaries removed to avoid the risk of developing ovarian cancer.  The defendant repeatedly advised against prophylactic oophorectomy because he felt the risk of premature menopause outweighed the risk of developing ovarian cancer.

On October 30, 2000, defendant brought the plaintiff to the operating room for an unrelated pelvic procedure.  In order to alleviate plaintiff’s fears of ovarian cancer, he told the plaintiff he would visually inspect her ovaries during the procedure.  After the procedure, he reported that her ovaries looked normal.

In January 2002, plaintiff presented at defendant’s office with complaints of pelvic pain.  Subsequent ultrasound revealed advanced ovarian cancer.  Plaintiff underwent major debulking surgery and extensive chemotherapy.  She was diagnosed with Stage IIIC ovarian cancer and her chance of five-year survival was less than 12%.

Plaintiffs filed a Daubert Motion to exclude defendant’s gynecological pathology expert who was prepared to testify that plaintiff had fallopian tube cancer, not ovarian cancer, that she had advanced cancer prior to her first visit with defendant in 1999, and that removal of ovaries would not have made a difference in her outcome.

When the parties could not get a trial date, they agreed to arbitrate the case and to have the Daubert Motion decided by a separate arbitrator.  Plaintiff deposed defendant’s gynecologic pathologist expert over two days during which the expert could not point to a single report in the medical literature to support his belief that the plaintiff already had advanced ovarian cancer prior to her first visit with the defendant.  During the arbitration of the Daubert Motion, the arbitrator repeatedly asked defendant’s expert to explain the scientific basis for his opinion that the plaintiff had advanced ovarian cancer prior to 1999; the defense expert could not do so and the arbitrator allowed plaintiffs’ Daubert motion, thereby excluding his testimony.

The arbitrator determined that based on plaintiff’s family history, defendant knew or should have known that plaintiff was a likely carrier of a genetic mutation putting her at an exceedingly high risk of developing breast and ovarian cancer and therefore prophylactic oophorectomy was indicated.  The arbitrator awarded $2,500,000.00, but did not award damages for plaintiffs’ claim for anticipatory wrongful death.  The parties subsequently settled the future wrongful death claim for $500.000.00.

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