Facts

On Sept. 11, 1998, plaintiff Jennifer Roth, 30, requested a breast check and was subsequently examined by defendant Dr. Susan Fritz-Zavacki. The examination revealed bilateral nodularity which was slightly increased on the left side. Defendant instructed Roth to decrease her caffeine intake, take vitamin E and return in several months.

Plaintiff returned Jan. 1, 1999 and defendant completed a clinical breast examination which did not reveal any nodularity, masses or suspicious findings. Additional breast examinations were also completed on June 9, 1999, Jan. 4, 2000, May 25, 2000 and Apr. 26, 2001 with similar results which were documented in medical records. According to defense counsel, plaintiff did not report any breast complaints during that time. According to plaintiff's counsel, the patient continued to report breast complaints during every breast exam.

In May 2002, plaintiff scheduled an appointment with defendant to evaluate a lump in her left breast. The evaluation revealed a 2-3 cm mass in the upper left breast. Defendant scheduled a mammogram and ultrasound, which she performed on May 30, 2002. The radiologist recommended a biopsy so defendant referred plaintiff to a general surgeon.

The biopsy revealed ductal carcinoma in situ, a non-invasive type of cancer. Plaintiff underwent a mastectomy believing that a lumpectomy combined with radiation treatment would be ineffective.

After the mastectomy, there was no recurrence or metastasis. Plaintiff brought suit for defendant's failure to timely diagnose breast cancer.

Settlement Discussions

Plaintiff made a demand for $250,000. Defendant offered to settle the case in exchange for a waiver of costs.

Specials in Evidence

$85,000 $65,000

Injuries

Plaintiff underwent breast reconstruction. She will require future surgeries, consisting of 2-3 maxoplexy and capsulectomy procedures. Plaintiff also claimed emotional distress and physical pain as a result of the delay in diagnosis.

Result

Following a mistrial, the case was dismissed in exchange for a waiver of costs.

Other Information

Defendant's insurance carrier was The Doctors Company.

Deliberation

3.5 days

Poll

4-8 (deadlocked)

Length

15 days