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Boryla v. Pash6/15/1998
Certiorari to the Colorado Court of Appeals
EN BANC AND CASE REMANDED
JUSTICE SCOTT and JUSTICE KOURLIS do not participate.
We granted certiorari to review the court of appeals decision in Boryla v. Pash, 937 P.2d 813 (Colo. App. 1996), to determine whether the court of appeals correctly reversed a jury verdict awarding the plaintiff $220,000 in noneconomic damages in a case involving a physician's failure to promptly diagnose a patient's breast cancer. The court of appeals held that the trial court erred in not granting, in part, a motion for directed verdict and that a new trial was necessary to determine issues relating to causation and damages. We reverse.
I.
While performing a routine self-exam in early February of 1990, thirty-two-year-old Gina "Gigi" Boryla (Boryla) discovered a lump in her right breast. A subsequent examination by Boryla's family physician revealed a movable mass which could not be successfully aspirated. The family physician referred Boryla to Dr. Robert M. Pash (Dr. Pash), who examined Boryla on February 20, 1990, and detected a "nodule" that, in his words, was "smaller than a marble" and "larger than a pea." Dr. Pash performed a biopsy on February 22, 1990, but did not request a mammogram. Test results from the biopsy were negative for cancer.
Boryla returned to see Dr. Pash on April 30, 1990, complaining that the lump in her breast had not gone away. Dr. Pash performed a needle aspiration of the thickened area but did not draw blood because Boryla was in mid-menstrual cycle. For this reason, Dr. Pash asked Boryla to return in two weeks if the problem persisted. On May 21, 1990, Dr. Pash examined Boryla again and scheduled a mammogram for May 23, 1990, as well as another biopsy for June 4, 1990. The treating radiologist who performed the mammogram reported that " n the upper central portion of [Boryla's] right breast, there is an area of increased density which is extremely irregular . . . . It measures approximately three centimeters in diameter in the lateral view and four by three centimeters in the craniocauded projection. The finding is highly suspicious for a malignancy." After receiving the mammogram results, Dr. Pash rescheduled the biopsy for May 25, 1990, whereupon the growth in Boryla's breast was determined to be cancerous and invasive. A radical mastectomy and surgical removal of Boryla's lymph nodes was performed on June 1, 1990. The surgery was successful and Boryla has not experienced any recurrence of cancer since her operation.
On February 18, 1992, Boryla sued Dr. Pash for negligence in not promptly diagnosing her cancer. Specifically, Boryla alleged that the ninety-two-day delay in diagnosing her condition resulted in an increased number of cancer cells in her body and caused the tumor to grow in size. Boryla sought damages for
i) past, present and future pain, suffering and discomfort, both physical and mental;
ii) severe and at times debilitating emotional distress, including fear of an increased risk of recurrence of cancer;
iii) loss of enjoyment of life, past, present and future;
iv) damages, losses and other physical and psychological injuries that are not known at this time;
v) loss of time; and
vi) reasonable and necessary medical and other incidental and out-of-pocket expenses.
A trial ensued on March 7, 1994, approximately four years after Dr. Pash first examined Boryla. Boryla's treating oncologist, Dr. Scott Sedlacek, described Boryla's cancer as "moderately aggressive" and testified that the average cancer cell doubles once every hundred days and that it was mo
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