Header graphic for print
New York Injury Cases Blog Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice Awards

Jury’s Failure to Award Future Pain and Suffering Damages Overturned in Breast Cancer Medical Malpractice Case

Posted in Medical Malpractice

Diane Abbatantuono was diagnosed with breast cancer in 1989 at which time she was treated with a lumpectomy, axillary lymph node dissection and five years of medicine.

In March 2007, after 18 years of remission, breast cancer was found again. Then 56 years old, Ms. Abbatantuono treated with breast surgeon Susan K. Boolbol, M.D. who performed a total mastectomy on April 20, 2007.

Tragically, the cancer continued to grow and on October 24, 2007 Ms. Abbatantuono had to endure another surgery (to remove axillary nodes) and then eight sessions of chemotherapy. In November 2010, though, she became metastatic when cancer was found in her right lung. A lobectomy was performed in which the entire upper lobe of Ms. Abbatantuono’s lung was removed.

In her lawsuit, Ms. Abbatantuono claimed that a study done just before her mastectomy in 2007 indicated that cancer had invaded nearby lymph nodes but they were not resected during the surgery and, contrary to good and accepted medical practice, the surgeon did not inform her she needed chemotherapy.

The Richmond County jury agreed and in 2012 awarded plaintiff $500,000 for her five years past pain and suffering while awarding zero for the future. The trial judge issued a post-trial decision adding $500,000 for future pain and suffering.

The appellate court has now affirmed the $1,000,000  pain and suffering award in Abbatantuono v. Boolbol (2d Dept. 2014).

Here are injury details resulting from the fact that the cancer left in plaintiff’s lymph nodes was untreated and thereby permitted to grow from May 2007 through October 24, 2007:

  • node removal surgery
  • lobectomy
  • respiratory therapy
  • lung is hyper resonant (extra air sounds)
  • shortness of breath, easily fatigued
  • severe mental anguish; exacerbated anxiety disorder; fear of dying; recurrent nightmares

Plaintiff’s expert oncologist, Petra Rietschel, M.D., testified that the defendant’s malpractice caused plaintiff to go from a 60% chance of survival in March 2007 down to a 40-50% chance of survival in October 2007 and, then to 0% chance of survival once the cancer metastasized into incurable Stage IV cancer.

Inside Information:

  • During the trial, defendant’s highest settlement offer was $125,000 whereas plaintiff’s settlement demand was $975,000. After  the verdict, plaintiff reduced her demand to $600,000 but the defendant did not even offer the $500,000 past damages only verdict sum.
  • The jury declined to make an award to plaintiff’s husband for his loss of consortium claim.
  • Defendant testified that she dictated an operative report after the mastectomy but neither she nor the hospital produced a copy at the trial or explained its disappearance.
  • This was a very hard fought case, with a 15 day trial, significant post-trial motion practice and an appeal with well-known and successful firms on both sides – Victoria Wickman for the plaintiff and Aaronson Rappaport Feinstein & Deutsch for the defendant.