Facts

On Jan. 7, 2006, the patient, 26, underwent a right breast biopsy read by pathologist 1 as showing benign changes. On March 6, 2006, the patient underwent an additional biopsy because of a persisting right breast mass, read by pathologist 2 as showing benign changes.

In August 2007, the patient underwent an additional right breast biopsy, which revealed the presence of a high-grade angiosarcoma. The left breast biopsy also revealed the presence of a high-grade angiosarcoma. Further work-up revealed that the patient had Stage 4 disease with metastasis to her liver. She underwent adjuvant treatment at UC Irvine, however, this failed to arrest the spread of her disease. The patient succumbed on Dec. 25, 2008, survived by her husband and children, ages 1 and 3 years old.

PLAINTIFF'S CONTENTIONS:
The plaintiffs contended that the Jan. 7, 2006 and March 7, 2006 biopsy specimens showed multiple features of a low-grade angiosarcoma and was diagnostic for the same. The plaintiffs also contended that the low-grade angiosarcoma evolved over time to a high-grade angiosarcoma as was found at diagnosis in August 2007. The plaintiffs argued that, had the diagnosis of a low-grade angiosarcoma been made in early 2006, the decedent would have enjoyed a 76 percent likelihood of cure pursuant to published literature as concerns primary angiosarcoma of the breast.

DEFENDANT'S CONTENTIONS:
The defendants acknowledged that the specimens contained features of a low-grade angiosarcoma, but asserted that a primary angiosarcoma of the breast is an extraordinary rare disease entity, with less than 150 cases reported in the worldwide medical literature. The defendants argued that consistent with an article, which appeared in December 2008, survival for primary angiosarcoma of the breast is not a function of tumor grade, as had been thought. This most recent article concluded that prognosis is poor, regardless of tumor grade.

Damages

The decedent was a high school graduate. It was argued that she was planning to return to work when her youngest reached the age of 5. Assuming that she would have earned a mean wage for high school graduates, plus loss of household services, the plaintiffs argued that economic damages were slightly in excess of $1 million. The defense argued that the median, rather than the mean wage for high school graduates, was more appropriate. The defense further argued that a present value calculation that included a net discount rate of 3 percent (as opposed to less than 1 percent per plaintiff) was most appropriate, which would place total economic damages at approximately $300,000.

Result

The case settled for $875,000 at mediation with Martin Handweiler, Esq., with each pathologist contributing equally.