Rhodes v. United States

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

SHILISA RHODES, )

)

Plaintiff, )

)

v. ) Civil Action No. 12-0449 (BAH)

)

UNITED STATES OF AMERICA, )

)

Defendant. )

____________________________________)

MEMORANDUM OPINION SETTING FORTH

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The plaintiff Shilisa Rhodes brought this medical malpractice action against the United

States, pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, et

seq., for damages allegedly sustained from negligent medical treatment provided by Unity Health

Care, Inc. (“Unity”) and Jamie Hill-Daniel, M.D., from December 2009 to March 2011. Pending

before the Court is the plaintiff’s claim that Dr. Hill-Daniel and Unity acted negligently by

failing to refer her in a timely manner for diagnostic testing of her breasts and for failing to take

certain other steps to ensure the timely diagnosis of her breast cancer. During a week-long bench

trial, the Court heard evidence on the plaintiff’s claim against the defendant. 1 For the reasons

1

The Court’s jurisdiction over this suit is not disputed. The parties agree that Unity and Dr. Hill-Daniel are deemed

to be employees of the Public Health Service eligible for Federal Tort Claims Act malpractice coverage pursuant to

42 U.S.C. § 223(g) because Unity is a grantee of the Department of Health and Human Services. Def.’s Proposed

Concls. of Law at 1 n.1; Pl.’s Corrected Proposed Concls. of Law at 1 n.1. The FTCA also requires as a

jurisdictional predicate that the plaintiff exhaust her administrative remedies. See 28 U.S.C. § 2675(a); McNeil v.

United States, 508 U.S. 106, 107 (1993); GAF Corp. v. United States, 818 F.2d 901, 904 (D.C. Cir. 1987). In this

case, the defendant does not dispute that the plaintiff has exhausted her administrative remedies. See Compl. ¶ 2

(plaintiff alleges that on September 19, 2011, the plaintiff presented claims to the U.S. Department of Health &

Human Services and that the U.S. Department of Health and Human Services failed to issue any determination on

the plaintiff’s claim within the mandatory six-month administrative waiting period); Answer ¶ 2 (defendant admits

that the plaintiff presented claims to the U.S. Department of Health & Human Services on or about September 19,

2011 and that the U.S. Department of Health & Human Services has failed to issue an determination of the

plaintiff’s claim).

explained below, the Court concludes that the plaintiff has sustained her burden of proof on the

negligence claim, that judgment must be entered for the plaintiff, and that damages will be

awarded in the amount of $4,458,582.17.

I. PROCEDURAL BACKGROUND

On March 23, 2012, the plaintiff initiated this medical malpractice lawsuit by filing a

complaint against the United States alleging that the defendant was negligent in multiple

respects, including:

1. Failing to timely diagnose and treat the plaintiff’s breast cancer;

2. Failing to timely and appropriately order and obtain diagnostic studies in light of the

plaintiff’s medical history, complaints, signs, and symptoms;

3. Failing to appreciate the seriousness of the plaintiff’s condition;

4. Failing to provide appropriate and timely follow-up care;

5. Failing to timely and appropriately examine the plaintiff;

6. Failing to timely and appropriately obtain, interpret, and act upon the plaintiff’s

medical history and physical findings;

7. Failing to timely and appropriately assess the plaintiff’s condition;

8. Failing to timely and appropriately obtain consultations and/or interventions from

other health care providers;

9. Failing to make timely and appropriate referrals for diagnostic testing, care, and

treatment; and

10. Failing to take timely and appropriate steps to protect the health and well-being of the

plaintiff.

Compl., ECF No. 1, ¶ 18.

At the plaintiff’s request, the Court imposed an expedited discovery and motions

schedule, see Scheduling Order, ECF No. 9, and an expedited trial date, see Pretrial Order, ECF

2

No. 20. 2 Shortly before trial, the defendant moved to amend its answer to the complaint to add a

defense of contributory negligence, and the plaintiff moved to preclude the defendant from

newly asserting the affirmative defense of contributory negligence and any claim of negligence

on the part of a third-party, Providence Hospital. See Pl.’s Mot. to Preclude New Assertions of

Contributory Negligence Defense and Any Claims of Negligence By Providence Hosp., ECF No.

36; Def.’s Mem. Opp. to Pl.’s Mot. to Preclude Assertion of Contributory Negligence and Any

Claims of Negligence by Providence Hospital and Mot. to Am. Answer, ECF No. 40. For the

reasons stated at the hearing on these motions, on June 18, 2013, the Court granted the plaintiff’s

motion in part and denied the defendant’s motion, precluding as untimely the defendant’s

assertion of a contributory negligence affirmative defense but permitting the defendant’s

admission of evidence regarding negligence on the part of Providence Hospital. See Minute

Order (June 18, 2013). 3, 4

2

The schedule was subsequently modified upon requests made by both parties. See Minute Order (August 22,

2012) (granting joint motion to amend scheduling order); Minute Order (November 16, 2012) (granting consent

motion for extension of time to complete discovery and for the defendant’s expert witness disclosures); Minute

Order (March 11, 2013 (granting joint motion to extend scheduling order); Minute Order (April 22, 2013) (granting

joint motion for extension of time to complete discovery and to file motions in limine).

3

The Court relied on Federal Rule of Civil Procedure 8(c), which requires a defendant to state any affirmative

defenses, including contributory negligence, in a pleading responsive to the complaint. The purpose of that

requirement is to give the opposing party notice of the defense and to permit the opposing party to develop in

discovery and present both evidence and argument before the district court responsive to the defense. Failure to

comply with Rule 8(c)’s timing requirement generally results in the waiver of that defense and its exclusion from the

case. Harris v. Secretary, 126 F.3d 339, 343 (D.C. Cir. 1997) (citing Banks v. Chesapeake & Potomac Tele. Co.,

802 F.2d 1416, 1427 (D.C. Cir. 1986)). The Court, however, recognized that “the purpose of pleading is to facilitate

a proper decision on the merits,” id., and that a defendant should be granted leave to amend an answer “when justice

so requires,” in accordance with Federal Rule of Civil Procedure 15. FED. R. CIV. P. 15(a)(2). Courts in this Circuit

evaluate when “justice so requires,” by looking to a number of factors, including whether the moving party engaged

in undue delay and whether undue prejudice to the opposing party would result by virtue of allowance of the

amendment. See Foman v. Davis, 371 U.S. 178, 182 (1962). Assessing the circumstances of this case, the Court

found that both undue delay and unfair prejudice would result if the defendant were permitted to amend its answer

more than nine months after the deadline set out in the applicable Scheduling Order for such amendments, and just

two weeks before the bench trial was scheduled to commence. The plaintiff convincingly argued that her approach

in discovery would have differed had she known of the defendant’s intention to prove contributory negligence –

which, in this jurisdiction, operates as a complete bar to recovery – and with discovery closed at the time that the

defendant finally raised it, the plaintiff had lost that opportunity. See Atchinson v. District of Columbia, 73 F.3d

418, 427 (D.C. Cir. 1996); (upholding the district court’s denial of the plaintiff’s motion for leave to amend a

complaint because the district court found that the change would be prejudicial, and noting that the plaintiff had filed

3

Over the course of the one-week bench trial, the plaintiff testified on her own behalf and

presented the testimony of two of her treating physicians, four medical experts, and three

damages witness. In response, the defendant called the plaintiff’s primary care physician, two

Unity employees, one employee of Providence Hospital, one of the plaintiff’s treating

physicians, and three medical expert witnesses. The defendant also played the videotaped de

bene esse deposition of one damages expert witness. Following the conclusion of the bench trial,

both parties submitted proposed conclusions of law. See Pl.’s Corrected Proposed Concls. of

Law, ECF No. 63; 5 Def.’s Proposed Concls. of Law, ECF No. 65. In addition, the parties

submitted three iterations of a Proposed Findings of Fact Table (“FOF Table”), in which they

proposed individual findings of fact, and noted which facts were in dispute. See Order, ECF No.

45 (explaining FOF Table); see also Proposed Findings of Fact, ECF No. 54 (“1st FOF Table”);

Proposed Findings of Fact, ECF No. 64 (“2d FOF Table”); Proposed Findings of Fact, ECF No.

68 (“3rd FOF Table”). The Court has considered these submissions along with the testimony

and exhibits at trial. 6

his motion for leave to amend “on the eve of trial, when discovery was complete,” that discovery would likely have

differed and that the strategy and nature of the defendant officer’s defense probably would have also differed); cf.

Does I through III v. District of Columbia, 815 F. Supp. 2d 208, 216 & n.4 (D.D.C. 2011) (granting the plaintiff

leave to amend his complaint because discovery on the merits was not closed and the proposed amendment would

not substantially alter the defendant’s discovery); Dove v. Wash. Metro. Area Transit Auth., 221 F.R.D. 246, 249

(D.D.C. 2004) (granting the defendant leave to amend its answer to assert a new affirmative defense when litigation

was in its early stages before the parties had appeared for an initial scheduling conference or even commenced

discovery); Morgan v. Fed. Aviation Admin., 262 F.R.D. 5, 10 (D.D.C. 2009) (granting defendant leave to amend its

answer to assert the new affirmative defenses of claim preclusion and issue preclusion when the “litigation [was] in

its nascent stages”).

4

This case was re-assigned to the presiding Judge on June 17, 2013.

5

The plaintiff timely filed her original proposed conclusions of law on July 5, 2013, ECF No. 54, but with leave of

the Court, filed a corrected proposed conclusions of law on July 16, 2013, ECF No. 63.

6

The Court received the following exhibits into evidence during the bench trial: fifty-eight Plaintiff’s Exhibits: 1,

3, 6, 8, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31, 33, 34, 35, 36, 38, 39, 40, 41, 44, 50A, 50 B,

51, 52, 53, 54, 55, 57, 58, 59, 60, 61, 62, 64, 67, 68, 73, 104, 106A, 106B, 106C, 112, 113, 114, 115, 116, 117, 118;

and sixteen Defendant’s Exhibits: 1, 2, 3, 5, 7, 8, 15, 21, 24, 25, 26, 28, 29, 36, 37, 38.

4

Based upon the testimony presented and exhibits admitted at the trial, the Court makes

the findings of fact set forth below and further states its conclusions of law. See FED. R. CIV. P.

52(a)(1) (“In an action tried on the facts without a jury . . . the court must find the facts specially

and state its conclusions of law separately. The findings and conclusions may be stated on the

record after the close of the evidence or may appear in an opinion or a memorandum of decision

filed by the court.”).

II. FINDINGS OF FACT

A. OVERVIEW OF WITNESSES

1. Plaintiff’s Witnesses

The plaintiff presented the testimony of the following ten witnesses, whose testimony is

briefly summarized below: Shilisa Rhodes; her treating oncologist, Dal Yoo, M.D.; the

radiologist who interpreted two of her diagnostic images, Joel Bowers, M.D.; two expert

witnesses in the national standard of care, John Sutherland, M.D., and Katherine Margo, M.D.;

one expert witness in pathology, F. Lee Tucker, M.D.; one expert witness in oncology, Peter

Pushkas, M.D.; one expert witness in the psychology of loss and grief, Mila R. Tecala, MSW,

ACSW, LICSW, DCSW; one expert witness in end of life costs, Terri Sue Patterson, RN, MSN,

CRRN; and one expert witness in economics, Richard J. Lurito, Ph.D. Plaintiff also played an

audio recording of excerpts from the deposition testimony of her primary care physician, Dr.

Hill-Daniel.

a) John Sutherland, M.D.

Dr. Sutherland is a board-certified family physician, who maintained private practices in

Minneapolis and St. Paul, Minnesota, for eleven years, and has practiced in academic institutions

in Minneapolis, Illinois, and Iowa for the past thirty-three years. Pl.’s Ex. 35 (Dr. Sutherland’s

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CV); Trial Tr. ECF No. 69 at 31:2–:5, 34:3–:5. Dr. Sutherland testified as one of two medical

experts for the plaintiff on the national standard of care applicable to a family practice physician

regarding a primary care physician’s appropriate response to a patient’s breast complaints,

including the steps necessary to ensure that diagnostic testing and specialty consultations are

performed on a timely basis. Id. at 32:22–33:5. Specifically, Dr. Sutherland opined that Dr.

Hill-Daniel breached the national standard of care by: (1) failing to fully investigate the

plaintiff’s breast complaints on December 3, 2009; (2) failing either to schedule a return visit for

the plaintiff thirty to sixty days after the December 3, 2009 visit to reassess her complaints, or to

refer the plaintiff immediately for diagnostic imaging studies on that date; (3) delaying the

plaintiff’s diagnosis by cancelling and rescheduling appointments multiple times; and (4) failing

to take measures to expedite diagnostic testing after Dr. Hill-Daniel palpated a mass in the

plaintiff’s left breast and lymph nodes under her left armpit on October 18, 2010. Id. at 37:9–

:24, 50:18–55:5.

b) Shilisa Rhodes

The plaintiff testified about her visits with Dr. Hill-Daniel regarding her breast

complaints, when Dr. Hill-Daniel allegedly failed to take the steps that would have led to an

earlier diagnosis of her breast cancer. Trial Tr. ECF No. 55 at 78:11–83:25, 92:10–98:12. She

also testified about her experiences with Unity, her medical history, the referral process that she

went through to receive diagnostic imaging, and the harm that her diagnosis of Stage IV breast

cancer has caused. Id. at 76:16–77:4, 84:1–91:25, 96:22–108:12.

c) F. Lee Tucker, M.D.

Dr. Tucker is board-certified in anatomical and clinical pathology, and is currently the

president and chief medical officer of Virginia Biomedical Laboratories, LLC. Pl.’s Ex. 36, at 2

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(Dr. Tucker’s CV). Dr. Tucker testified as the plaintiff’s expert about the behavior and

pathology of breast cancer, and its prognosis, diagnosis, staging, and curability. He opined that

the plaintiff’s breast cancer was Stage I in December 2009, and that if it had been diagnosed and

treated at that point, it would most likely have been cured. Trial Tr. ECF No. 55 at 11:14–:19.

He also opined that sometime between July and November 2010, her cancer became Stage II by

metastasizing to the lymph nodes, and that it became Stage IV incurable cancer by metastasizing

to her bone sometime between December 2010 and February 2011. Id. at 47:14–48:11, 49:17–

:25.

d) Katherine Margo, M.D.

Dr. Margo is a board-certified family doctor who has practiced family medicine for

thirty-one years and is currently a faculty member at the University of Pennsylvania with a

family medicine practice. Pl.’s Ex. 34, at 1–2. She has been a member of the American

Academy of Family Physicians since 1982. Id. at 3. Dr. Margo testified as the second of

plaintiff’s two expert family medicine witnesses about the national standard of care that applied

to Dr. Hill-Daniel when the plaintiff presented to her first in December 2009 and again in

October 2010. She opined that Dr. Hill-Daniel breached the national standard of care by (1) not

considering breast cancer as a possible diagnosis at the plaintiff’s initial visit; (2) not scheduling

a follow-up visit for the plaintiff four to six weeks after that visit; and (3) not ensuring that the

plaintiff’s cancer was diagnosed within two to three weeks after her return visit on October 18,

2010. Trial Tr. ECF No. 70 at 52:16–53:1, 60:20–61:2, 61:20–:23, 64:22–65:22, 81:18–82:25.

e) Mila R. Tecala, MSW, ACSW, LICSW, DCSW

Ms. Tecala is a social worker licensed to practice in the District of Columbia and

Virginia. Trial Tr. ECF No. 70 at 91:8–:11. She works in private practice and serves as a

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consultant to several area agencies and hospitals, including Montgomery Hospice, the National

Cancer Institute, Hospice Care of D.C., and Loudoun County Social Services. Pl.’s Ex. 39, at 2.

Her practice specializes in loss and grief, Trial Tr. ECF No. 70 at 91:5–:7, and she has

experience with individuals who have been diagnosed with Stage IV metastatic cancer. Id. at

93:16. Ms. Tecala testified that she evaluated the plaintiff in 2012 and again in 2013 at the

plaintiff’s lawyers’ request. Id. at 94:13–:16. Based on these evaluations, Ms. Tecala diagnosed

the plaintiff with depression in 2012 and reaffirmed that diagnosis in 2013. Id. at 95:23, 99:4–

:24. Ms. Tecala also testified that the plaintiff was experiencing grief and feelings of loss due to

the loss of her health, loss of her breast, loss of body experiences through pain and suffering, and

future loss of life. Trial Tr. ECF No. 56 at 9:18–:25. Ms. Tecala testified regarding her

recommendation that the plaintiff attend counseling sessions once per week. Id. at 14:11–:19.

f) Dal Yoo, M.D.

Dr. Yoo is an oncologist who practices in the Internal Medicine, Hematology and

Oncology Department at Providence Hospital in Washington, D.C. Pl.’s Ex. 116, at 2 (Dr. Yoo’s

CV). Dr. Yoo has been the plaintiff’s treating oncologist since January 30, 2012, when he

assumed responsibility for this case from another oncologist. Trial Tr. ECF No. 56 at 20:20–:21.

Dr. Yoo testified that the plaintiff has hormone-dependent cancer that has metastasized to her

bones. Id. at 22:21–:25, 30:21–:23. He also testified that during the time he has treated plaintiff,

she has had two different courses of hormone therapy, as well as courses of radiation therapy,

and chemotherapy. Id. at 22:13–26:15, 28:2–33:24. He testified that all of the plaintiff’s

treatments are palliative and that at some point all treatments will stop working for her. Id. at

34:13–36:1.

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g) Joel Bowers, M.D.

Dr. Bowers is the diagnostic radiologist at Providence Hospital who interpreted MRI

images of plaintiff’s pelvis from May 12, 2011 and July 15, 2011, and wrote the corresponding

reports. Trial Tr. ECF No. 56 at 49:7–:10, 57:12–:15; see also Pl.’s Ex. 115 (Dr. Bowers’s CV).

Dr. Bowers testified that the MRI taken on May 12, 2011 showed three early metastatic lesions

on the plaintiff’s pelvic bone. Trial Tr. ECF No. 56 at 50:16–51:20, 55:10–56:11. He also

testified that the MRI taken on July 15, 2011 showed marked improvement, which signified a

good response to chemotherapy. Id. at 57:14–58: 11.

h) Peter Pushkas, M.D.

Dr. Pushkas is board-certified in internal medicine and medical oncology. Pl.’s Ex. 38, at

2 (Dr. Pushkas’s CV); see also Trial Tr. ECF No. 56 at 61:16–:17. Dr. Pushkas testified as one

of plaintiff’s expert witnesses about the staging and progression of breast cancer. Dr. Pushkas

opined that in December 2009, the plaintiff had Stage I breast cancer, that it progressed to Stage

II sometime between July and August 2010, and that it progressed to Stage IV sometime between

December 2010 and March 2011. Trial Tr. ECF No. 56 at 67:16–69:5, 74:16–:24. Dr. Pushkas

also opined that if the plaintiff’s breast cancer had been diagnosed and treated while Stage I, she

would likely have had a 98% chance of survival, id. at 77:14–78:6; and while Stage II, a chance

of survival in the 70% range. Id. at 78:14–:23. He also opined that with her Stage IV breast

cancer diagnosis, she has only a 15–17% chance of five-year survival. Id. at 83:8–:25.

i) Terri Sue Patterson, RN, MSN, CRRN

Nurse Patterson is a licensed professional nurse and a specialist in rehabilitation nursing.

Pl.’s Ex. 40, at 1. Nurse Patterson testified about the “cost and services for hospice care and

palliative care” for the plaintiff through the end of the plaintiff’s life. Trial Tr. ECF No. 56 at

9

93:9–:15. In evaluating medical costs for the plaintiff’s care, Nurse Patterson examined

palliative and hospice care, medical care, counseling services, and home care and/or hospice

inpatient treatment. Id. at 94:13–17. Based on Ms. Tecala’s recommendation that the plaintiff

attend weekly counseling sessions with a psychologist or social worker, Nurse Patterson

estimated the cost of counseling for the plaintiff as $175 per week for 18 months, for a total of

$13,650. Id. at 94:20–:22, 95:11; Pl.’s Ex. 53 at 10. Nurse Patterson also opined that patients

usually require palliative and hospice care for the last six months of life. Trial Tr. ECF No. 56 at

94:13–:17. On that basis, she estimated the cost of six months of hospice care at $200 per day

for ninety days of in-home care ($18,000 total), and $700 per day for ninety days of inpatient

care, ($63,000 total). Id. at 96:6–:10, 96:25–97: 2; Pl.’s Ex. 53 at 10. For the plaintiff’s medical

costs, Nurse Patterson estimated that during the last six months of her life, the plaintiff will

require an oncologist’s care at $200 per visit, twice per month, for a total cost of $2,400; a

primary care physician’s care twice per month at $70 per visit, for a total cost of $840; and a pain

management specialist once a month at $500 per visit, for a total cost of $3,000. Trial Tr. ECF

No. 56 at 97:15–18; Pl.’s Ex. 53 at 10. Nurse Patterson estimated the cost of a twenty-four-hour

per day in-home health aide for the last three months of the plaintiff’s life at $23 an hour, for a

total of $49,680. Pl.’s Ex. 53 at 10. In total, Nurse Patterson estimated the cost of the plaintiff’s

future care needs at $150,570. Trial Tr. ECF No. 56 at 98:17; Pl.’s Ex. 53 at 11.

j) Richard J. Lurito, Ph.D.

Dr. Lurito is a consultant and economist with a Ph.D. in economics. Pl.’s Ex. 41, at 1.

He specializes in the area of determining economic loss. Trial Tr. ECF No. 71 at 10:18–:20. Dr.

Lurito testified that the plaintiff could expect to suffer three types of economic loss: loss of

earnings, loss of household services and future care costs. Trial Tr. ECF No. 71 at 12:14–:23.

10

As to loss of earnings, Dr. Lurito testified that the plaintiff would earn $737,715 in today’s

dollars if her income stayed the same for the rest of her working life, which he assumed would

end at age 65. Trial Tr. ECF No. 71 at 13:13–:15; 14:1–:20; 15:14–:25. Dr. Lurito testified that

he applied a discount rate of 3.5 percent to all of his calculations to reflect the interest on the

judgment. Trial Tr. ECF No. 71 at 16:16–22; 17:16-:21; 23:4–:11; 25:24–26:1. Dr. Lurito

calculated the economic value of the loss of the plaintiff’s household services – which Dr. Lurito

generally defined as the ability to provide childcare services to the plaintiff’s children – to be

between $508,121 and $652,939. Trial Tr. ECF No. 71 at 20:5–:13; 21:13–18. Dr. Lurito

testified that the range represents the difference between household services being provided until

the plaintiff’s youngest child reaches age eighteen or age twenty-one. Trial Tr. ECF No. 71 at

21:5–:9. Finally, Dr. Lurito testified that the plaintiff’s future care costs, i.e., the costs of her

treatment until her death, were between $146,682 and $149,886. 7 Trial Tr. ECF No. 71 at 25:5–

:11.

2. Defendant’s Witnesses

The defendant presented the testimony of the following nine witnesses, whose testimony

is briefly summarized below: Dr. Hill-Daniel; Terita Jones; Diana Lapp, M.D.; Richard Carter,

M.D.; Marshal Williams; two medical expert witnesses in the national standard of care, William

McLaurin Bethea Jr., M.D., and Edward Graeme Koch, M.D.; one medical expert witness in

oncology, John M. Feigert, M.D.; and one expert witness in economics, Gloria Hurdle, Ph.D. (by

video deposition).

a) Jamie Hill-Daniel, M.D.

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Dr. Lurito applied a 3.75 or 4 percent “escalation rate” to some of the estimates Nurse Patterson provided to reflect

the increase in costs over the time in which the plaintiff would need future care, as well as applying a 3.5 percent

discount rate to the costs to develop a present cost estimate that differs slightly from Nurse Patterson’s estimate.

11

Dr. Hill-Daniel is a board-certified family medicine doctor with a practice at Unity’s

Congress Heights location. Trial Tr. ECF No. 71 at 60:10–:16, 61:15–:19, 64:23–:25. Dr. Hill-

Daniel testified that she also works as an assistant clinical professor for the Georgetown School

of Medicine, the George Washington School of Medicine, and the Georgetown Residency

Program, and that she acts as both a staff physician and an attending physician at Providence

Hospital, with admitting privileges. Id. at 61:23–64:3. Dr. Hill-Daniel testified about her

treatment of the plaintiff as her primary care physician and, in particular, for the plaintiff’s

complaints about pain, tenderness and knots in her breasts. Dr. Hill-Daniel testified that even in

hindsight, she would not have responded to the plaintiff’s breast complaints any differently than

she did. Trial Tr. ECF No. 58 at 47:4–:15.

b) Terita Lynette Jones

Terita Jones is a care management support person for Unity at the Congress Heights

location. Trial Tr. ECF No. 72 at 8:23–9:8. Ms. Jones testified about how Unity processes

referrals and obtains insurance authorizations. She testified that she processes over fifty referrals

per day for Dr. Hill-Daniel and three other physicians, and that she processed the referrals and

authorizations for the plaintiff to obtain diagnostic tests at Providence Hospital. Id. at 9:12–:14,

26:7–:8. She also testified that she re-processed the plaintiff’s paperwork on November 3, 2010

after the plaintiff appeared for her appointment at Providence Hospital to obtain a diagnostic

ultrasound but could not obtain the test because Dr. Hill-Daniel had entered the wrong code on

the plaintiff’s referral and authorization forms. Id. at 22:14–31:21.

c) Diana Lapp, M.D.

Dr. Lapp is the Deputy Chief Medical Officer and Vice President for Medical

Administration for Unity, and she testified about the policies and procedures in place to handle

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the between 550 and 600 patients seen each week at Unity’s Congress Heights location. Trial Tr.

ECF No. 72 at 71:16–:20; 77:13–:15. Dr. Lapp testified that at a typical visit to Unity, a patient

will generally see a registration assistant for check-in, then a medical assistant who takes down

her complaints, and then the doctor. Id. at 84:5–86:13. A patient may see a doctor either by

making an appointment or walking in. Id. at 83:1–:6.

d) Richard Carter, M.D. 8

Dr. Carter is an emergency medicine doctor at Howard University Hospital who treated

the plaintiff for breast complaints on May 19, 2010. Trial Tr. ECF No. 72 at 119:13–:15. Dr.

Carter testified that his records of the visit reflect that the plaintiff’s chief complaint was

tenderness in her left breast. Id. at 119:11–:12. He performed a physical exam and found

multiple tender breast cysts – one of which was particularly large – and no signs of infection. Id.

at 122:6–123:23. Dr. Carter testified that he told the plaintiff to follow up with her primary care

physician. Id. at 123:24–124:9.

e) Marsha Williams

Ms. Williams is employed as a front desk registration clerk at Providence Hospital with

responsibility for performing intake for patients who have appointments for diagnostic

mammograms, regular mammograms, ultrasounds, and bone-density scans. Trial Tr. ECF No.

8

Dr. Carter was subpoenaed to appear at trial by counsel for the defendant. Before he took the stand to testify,

plaintiff’s counsel raised an objection that defendant’s counsel had improperly spoken with Dr. Carter about the

plaintiff’s care without proper authorization under the Health Insurance Portability and Accountability Act of 1966

(“HIPAA”). Trial Tr. ECF No. 72 at 108:12–:24. Two lead attorneys for the defendant orally represented to the

Court that they had never spoken to Dr. Carter. See id. 108:25–109:2, 109:20–:24. The Court determined that the

best course was to proceed with Dr. Carter’s examination, which would clarify the factual dispute about whether Dr.

Carter had, in fact, been interviewed by defense counsel, and permit the parties to brief the issue of the alleged

HIPAA violation after conclusion of the trial. Id. at 111:20–112:3. Just moments before Dr. Carter took the witness

stand, however, a third attorney for the defendant, who did not examine any of the witnesses at trial, came forward

and identified himself as the defense counsel who had interviewed Dr. Carter at the express direction of one of the

two lead attorneys. Neither of the two lead defense attorneys, when denying any contact with Dr. Carter, had

indicated to the Court that they had knowledge of any contact by another defense counsel with Dr. Carter or that

another attorney on the defense team had actually been directed to interview him. These blatant omissions by the

two lead defense attorneys fall short of the level of candor that this Court expects under Rule 3.3 of the D.C. Rules

of Professional Conduct.

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72 at 141:4–:21. Ms. Williams testified that she was working when the plaintiff came in for an

ultrasound test on November 3, 2010, but the plaintiff could not have the procedure done

because the code on her referral and insurance authorization was not accepted by Providence

Hospital. Id. at 144:21–146:6, 147:9–148:24. Ms. Williams also testified that in 2010 to 2011,

ultrasound appointments were scheduled about a week in advance, but if there were a need, they

could be scheduled within a couple of days, and that mammograms could be scheduled within a

week or two. Id. at 146:19–147:4.

f) Gloria Hurdle, Ph.D.

Dr. Hurdle is an economist with a Ph.D. in economics. Def.’s Ex. 28, at 1. Dr. Hurdle’s

videotaped de bene esse deposition was played during the bench trial and a transcript of Dr.

Hurdle’s deposition was introduced into evidence as Defendant’s Exhibit 36. Dr. Hurdle

testified about the plaintiff’s lost net earnings, lost household services, and future care costs.

Def.’s Ex. 36 at 11:12–:24. Dr. Hurdle testified she calculated the plaintiff’s lost net income by

assuming that the only change to the plaintiff’s salary over time would be inflation and by

subtracting a discount rate of 8.98 percent, to reflect the “riskiness” of the plaintiff’s ability to

earn future wages. Id. at 15:3–:5, 18:14–19:12, 21:9–:17. In calculating these lost wages, Dr.

Hurdle used work-life expectancy tables to estimate that the plaintiff would have worked twenty-

seven years between 2012 and retirement at age sixty-five. Id. at 29:2–5. She further reduced

the lost net income estimate by subtracting the amount of the plaintiff’s “consumption” during

her lifetime. Id. at 15:9–:12. In estimating the loss of household services, Dr. Hurdle applied the

same discount rate of 8.98 percent and estimated the pecuniary loss to the plaintiff as between

$166,521 (if calculated up to the plaintiff’s youngest child turning eighteen) and $191,239 (if

calculated up to the plaintiff’s youngest child turning twenty-one). Id. at 27:4–:7, 27:19. Dr.

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Hurdle calculated the plaintiff’s total cost of future care as between $90,434 (if the plaintiff uses

in-home hospice care) and $111,889 (if the plaintiff uses inpatient hospice care). Id. at 37:12–

13.

g) William McLaurin Bethea Jr., M.D.

Dr. Bethea is board-certified in internal medicine and practiced in Norfolk Virginia from

1977 until his retirement in 2012. Def.’s Ex. 24, at 2 (Dr. Bethea’s CV). Dr. Bethea testified as

a defense expert witness regarding the national standard of care regarding a family medicine

doctor’s responsibility to investigate and diagnose a patient’s complaints for breast cancer. Dr.

Bethea opined that Dr. Hill-Daniel satisfied the national standard of care at the plaintiff’s first

visit for breast complaints in December 2009 by reassuring her of the benign nature of her

concerns, advising her to change her bra, and prescribing pain medication, and that Dr. Hill-

Daniel also satisfied the national standard of care in her treatment of the plaintiff at subsequent

visits in early 2010 when she did not ask the plaintiff about the status of any breast complaints.

Trial Tr. ECF No. 73 at 21:12–:19, 35:21–36:10. He also testified that Dr. Hill-Daniel did not

deviate from the standard of care after the plaintiff’s October 18, 2010 visit, when Dr. Hill-

Daniel palpated a mass in the plaintiff’s left breast and lymph nodes under her left armpit,

despite permitting five-months to elapse between the visit and the diagnosis of breast cancer,

although he conceded that Dr. Hill-Daniel’s treatment at that time did not meet best practices.

Id. at 40:14–45:23.

h) Edward Graeme Koch, M.D.

Dr. Koch is board-certified in obstetrics and gynecology. Def.’s Ex. 25, at 1(Dr. Koch’s

CV). He has practiced as an obstetrician and gynecologist since 1975 and currently contracts as

a gynecologist at the OB/GYN department of Walter Reed National Military Medical Center,

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and has a private gynecology practice. Id.; see also Trial Tr. ECF No. 73 at 66:21–68:7. Dr.

Koch testified as a defense expert witness regarding the national standard of care for a family

medicine physician to assess and diagnose a patient’s breast complaints. Dr. Koch opined that

Dr. Hill-Daniel did not deviate from the applicable standard of care by treating the plaintiff’s

symptoms at the December 3, 2009 visit and ensuring the plaintiff that the symptoms were

benign, by not following-up on the plaintiff’s breast complaints at her subsequent visits, by

ordering a six week follow-up period after referring the plaintiff for a diagnostic ultrasound, and

by then proceeding to order a mammogram and a biopsy in that progression. Trial Tr. ECF No.

73 at 76:9–79:6, 85:5–:18, 95:20–98:14, 99:1–105:9.

i) John M. Feigert, M.D.

Dr. Feigert is a hematologist oncologist who is board-certified in internal medicine,

hematology, and oncology. Def.’s Ex. 26, at 1(Dr. Feigert’s CV); see also Trial Tr. ECF No. 57

at 22:20–23:7. He currently works in private practice in Arlington, Virginia. Def.’s Ex. 26, at 1;

Trial Tr. ECF No. 57 at 23:14–:18. Dr. Feigert testified as a defense expert on the character,

qualities, staging, and prognosis of breast cancer. Dr. Feigert opined that as of December 3,

2009, the plaintiff’s cancer was at least Stage III-B because it had already infiltrated her skin,

and that it was likely Stage IV because it had probably also metastasized into her bone. Trial Tr.

ECF No. 57 at 30:13–:18. He also testified that, based upon his opinion about the staging of the

plaintiff’s cancer, if diagnosed in December 2009, the plaintiff’s chance of survival would have

been less than 50%. Id. at 61:10–:25.

B. CREDIBILITY ASSESSMENT

1. The majority of the witnesses who provided testimony during the bench trial were expert

witnesses and the plaintiff’s treating physicians. The witnesses generally testified credibly.

16

Ms. Jones, Dr. Lapp, and Ms. Williams also testified as non-party fact witnesses and they

presented the facts of which they had first-hand knowledge in a frank and candid manner.

2. The Court found the plaintiff to be entirely credible. Her testimony was consistent. For

example, despite a lengthy and aggressive cross-examination about how long she had been

feeling knots in her breast when she visited Dr. Hill-Daniel in December 2009, her

recollection that she only began feeling them around the time of that visit never wavered.

See Trial Tr. ECF No. 55 at 108:24–109:1 (“Q: Did you tell [Dr. Hill-Daniel] that you had

been having the knot for three years before [December 3, 2009]? A: No.”); id. at 113:6–:9

(“So, if you went back to Fort Washington in August 2010, and if we are counting back three

years from 2010, would you agree that you knew about those knots in 2007? A: No, I did not

know about the knots in 2007.”); id. at 113:11–:15 (Responding to a question from defense

counsel about whether she testified at her deposition that she had been feeling the knots for

three years prior to the December 3, 2009, visit, the plaintiff replied “I mean, I probably

didn’t understand the question. But I know in 2007, I did not have no knots on my left

breast. . . . I mean, I wouldn’t agree that I had the knots in 2006 because I know I didn’t

have no knots in 2006.”); Trial Tr. ECF No. 70 at 43:6–44:1 (On redirect, the plaintiff’s

counsel quoted this passage from the deposition transcript: “Question: Right. But you told

them that you had them for three years? This is August of 2010. Answer: I had the knot

when I seen Dr. Hill-Daniel, so more, I mean came at that time. [Question:] Did you have

those lumps for three years prior to August of 2010? Answer: Not that I recall. I had them

at the time I went to see Hill-Daniel. So I don’t know if they – it wasn’t there before I went

to see her, like the first visit I complained about the knot. [Question:] You had them before

that? . . . Answer: No, I didn’t. The first time that I seen, actually seen the knot was the first

17

time I visited her in December of 2009. Question: And you – your testimony is that you did

not have any lumps in your breast prior to December of 2009? Answer: I had – I haven’t

had no lumps before – I mean before that December visit that I know of.”). All the while, the

plaintiff’s demeanor was firm, but not defensive.

3. Furthermore, despite an unexplained lapse in memory regarding her visit to the emergency

room at Howard University Hospital on May 19, 2010, the plaintiff was forthcoming and

straightforward. She readily admitted when she did not personally remember an event, and

she did not appear to substitute speculation about what might have occurred for actual

memory. See, e.g., Trial Tr. ECF No. 55 at 82:19–:23 (“The Court: Were you, during [the

January 8, 2010] visit, still having pain and tenderness in your breasts? Do you recall? The

Witness: I don’t remember at that time. But I know I just remembered what she told me

about the problems that I had with the knot and the pain in my left breast.”); id. at 83:15–:25

(“Q: Let’s talk about the April 30th, 2010 visit with Dr. Hill-Daniel. Do you recall going to

see Dr. Hill-Daniel on this date for a checkup and problems with your eyes? A: Yes. Q:

Okay. At that time, do you recall if Dr. Hill-Daniel asked you if you were having any

problems with your breasts? A: No. Q: Were you having any problems with your breasts?

A: Actually, no. Q: Was the knot still present? A: It was the same thing as from the first

visit in 2009.”).

4. The Court also found Dr. Hill-Daniel to be credible in some areas and not in others. Despite

Dr. Hill-Daniel’s insistence that she remembered her encounters with the plaintiff first-hand,

it was clear to the Court that her memory of the events giving rise to this case – particularly

those that took place in 2009 and early 2010 – was based on what was written in the patient

progress notes, and generalizations about her patients. See, e.g., Trial Tr. ECF No. 58 at

18

50:13–:24 (“Q: Do you recall testifying in your deposition that you had no recall of

conversations that were not recorded in the medical records? Do you recall giving that

testimony? A: At the beginning of the deposition, yes, I said I didn’t recall other than what

was in the chart. But by the end of the deposition, even [the plaintiff’s counsel] noted that I

did recall other instances with more interactions with [the plaintiff] than came out during the

deposition. Q: And apparently since the deposition, you’ve had further recall about the

conversations that you had with [the plaintiff]; is that accurate to say? A: Yes.”). Dr. Hill

Daniel sees an average of twenty to twenty-two patients per day, five days per week, Trial

Tr. ECF No. 71 at 65:6–8; Trial Tr. ECF No. 58 at 88:2–14, and there was nothing about the

plaintiff’s December 2009, January 2010, or April 2010 visits that seemed particularly

notable to Dr. Hill-Daniel at the time. Moreover, when asked questions about what happened

during the plaintiff’s various visits, Dr. Hill-Daniel often responded by referring to what was

written in the progress note. See, e.g., Trial Tr. ECF No. 58 at 4:6–:12 (“Q: And what

history did the patient give you [on December 3, 2009]? A: As noted in the chart, [the

plaintiff] came in with . . . .”); id. at 20:13–:17 (“Q: What course of action did you take to

resolve the complaints [at the January 8, 2010 visit]? A: Well, as you see from the history,

when someone comes in basically questioning fertility, we do counseling for family

planning.”). Sometimes Dr. Hill-Daniel responded to questions about her interactions with

the plaintiff by referring to her general practices. See, e.g., id. at 10:3–:15 (Q: Dr. Hill-

Daniel, would you show us how you did the physical examination of Ms. Rhodes’ breasts?

How did you examine her breasts? . . . A: Sure. To do a clinical breast exam, we ask the

woman to disrobe from the waist up. So, I asked her to take her shirt and her bra off . . . .

When I came in the room, I have the patient sit on the examination table. The first part of the

19

exam is observation. So, I look at her breasts while she is sitting . . . . And then I have the

patient lie supine on the table and I begin the exam.”). These characteristics cast some doubt

on the credibility of Dr. Hill-Daniel’s testimony regarding details of the plaintiff’s early visits

that were not recorded in the progress notes, and the Court has some concern that her

testimony about those visits was based on wishful speculation rather than personal memory.

5. In addition, Dr. Hill-Daniel displayed some signs of dissembling, such as the evasive nature

of her answers to questions about whether she was or was not the plaintiff’s primary care

physician, see, e.g., id. at 48:3–:15 (stating that “as I stated before in my deposition, at the

time I didn’t necessarily consider her my patient,” but conceding that in accordance with

Unity policy, “I would have considered her my patient by then”), and her inadequate

explanations about certain notations in the plaintiff’s medical records, see, e.g., id. at 6:19–

7:10 (asked by the Court why she wrote “no history of cancer in first degree relatives”

despite her testimony that she asked Ms. Rhodes “if she had any family history of breast

cancer,” Dr. Hill-Daniel responded with an explanation of the medical significance of family

history in first-degree relatives and stated “So, it’s very, I guess for myself, I wanted to be

clear of what she is saying, that even though she is saying that there is no family history, but

there’s definitely – she’s definitely denying any first degree relative”).

C. PLAINTIFF’S BACKGROUND

1. At the time of the bench trial, the plaintiff was 27-years old. See Trial Tr. ECF No. 55 at

6:2–:5. She is a high school graduate, id. at 6:12–:15, who was employed as a food service

worker at United Medical Center from 2009 until March 2013. Id. 6:8–:11, 104:8–13. She

stopped working in March 2013 because the pain she experienced from her breast cancer,

which had metastasized to her bones, prevented her from standing for the amount of time her

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job required. Id. 103:14–104:1. Since then, she has interviewed for other jobs, id. 103:5–:7,

and she was recently hired by a cleaning company, id. 103:7–:9. At the time of the bench

trial, she was waiting for that job offer to be finalized. Id. She is not married and has two

children, who at the time of the bench trial were eight and nine years old. Id. 75:4–:11.

2. Both of the plaintiff’s grandmothers were diagnosed with breast cancer before the events that

gave rise to this action. Trial Tr. ECF No. 55 at 75:21–76:11. Her paternal grandmother

died of breast cancer in 1994, id. at 76:1–:6, and her maternal grandmother was diagnosed

with breast cancer in her thirties and was living at the time of trial, id. at 76:5–:11.

D. DR. HILL-DANIEL’S PRACTICE AND UNITY PROCEDURES

1. Dr. Hill-Daniel sees an average of about twenty to twenty-two patients per day as a family

practice physician at the Congress Heights location of Unity. Trial Tr. ECF No. 71 at 65:6–

:8; Trial Tr. ECF No. 58 at 88:2–:14. Each patient is allotted a fifteen-minute visit. Trial Tr.

ECF No. 71 at 65:11–:12. Dr. Hill-Daniel performs breast exams regularly as part of the

annual exams for women, called “well-woman visits,” and when a patient has a specific

breast complaint. Id. at 66:6–:8, 73:7–:10. It is very rare for Dr. Hill-Daniel to see a woman

under the age of thirty for a specific breast complaint. Id. at 66:9–:11.

2. Dr. Lapp, a representative of Unity, testified that when a patient first comes in to the

Congress Heights location of Unity, the patient is seen by a registration assistant, and then

speaks with a medical assistant before seeing the provider. Trial Tr. ECF No. 72 at 84:5–:9.

The registration assistant records information related to the visit – i.e. type of visit,

established patient or new patient – in the electronic medical record under “reason for

appointment.” Id. at 84:22–85:5. The patient then sees a medical assistant, who asks why

the patient has come in for a visit and records the patient’s answer in the electronic medical

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record, also under “reason for appointment.” Id. at 85:5–:7. Dr. Lapp testified that

communication between the medical assistant and the physician is largely done electronically

or by paper, id. at 85:20–86:3, and that by the time the physician sees the patient, the medical

assistant has already turned to the next patient. Id. at 86:4–:13.

3. Dr. Hill-Daniel first saw the plaintiff as a patient for a well-woman visit on July 25, 2008.

Def.’s Ex. 1, at 3; Trial Tr. ECF No. 71 at 73:5–:12. Dr. Hill-Daniel saw the plaintiff again

in September 2008, April 2009, and August 2009 for complaints unrelated to the plaintiff’s

breasts. Def.’s Ex. 1, at 4–6; Trial Tr. ECF No. 71 at 75:9–:22, 76:10–:17, 77:6–:19. Dr.

Hill-Daniel testified that although the plaintiff was never formally assigned as a patient to Dr.

Hill-Daniel, doctors at Unity assume the role of primary care physician for a particular

patient after seeing the patient three times. Trial Tr. ECF No. 58 at 48:18–:21. By the time

of the plaintiff’s December 2009 visit to the Unity clinic, Dr. Hill-Daniel had seen her at least

four separate times. Id. at 48:22–25.

E. THE PLAINTIFF’S VISIT WITH DR. HILL-DANIEL ON DECEMBER 3,

2009

1. The plaintiff visited the Congress Heights location of Unity on December 3, 2009, for a

scheduled visit with Dr. Hill-Daniel. Trial Tr. ECF No. 55 at 78:17–:25; Pl.’s Ex. 1, at 1066.

There is some dispute as to whether the plaintiff told the Unity healthcare providers that she

felt a knot specifically in her left breast or whether she described feeling knots in both

breasts.

a) The plaintiff testified that she told Dr. Hill-Daniel that she had soreness and

tenderness in both of her breasts, and a pain and a knot in her left breast. Trial Tr.

ECF No. 55 at 78:12–:16 (the plaintiff’s testimony that the reason for her visit was

“soreness and tenderness in both of [her] breasts and pain and a knot in [her] left

22

breast”); see also id. at 17:19–:22. She testified that the pain had started about a

month before the appointment. Id. at 78:20–79:2. There is no dispute that the

plaintiff asked Dr. Hill-Daniel for a mammogram. Id. at 78:14–:15 (plaintiff’s

testimony that she asked Dr. Hill-Daniel for a mammogram); Trial Tr. ECF No. 58 at

13:23–:24 (Dr. Hill-Daniel’s testimony that at the December 3, 2009 appointment, the

plaintiff asked her “if she needed a mammogram for her complaint”).

b) Dr. Hill-Daniel denied that the plaintiff complained of a knot in the left breast, but

testified that she complained that both breasts were sore and had knots in them. Trial

Tr. ECF No. 58 at 4:7–:12 (“[The plaintiff] held under her breasts and basically just

motioned that both breasts were tender and felt lumpy.”). According to Dr. Hill-

Daniel, she specifically asked if there was any particular place where the plaintiff felt

the “knot,” and the plaintiff did not identify any specific location. Id. at 18:18–:23

(“So, during the course of our exam, I asked her, you know, is there a particular

place, you know, where do you feel the knot? And she couldn’t give me any specific

place. And when I asked her, she just, again, said, they’re all over. So basically

saying that both breasts felt sore and knots in them, not one specific knot.”).

c) The Unity progress note for the plaintiff’s December 3, 2009 visit lists as the reason

for appointment as “1. Medical – Adult Est Patient 2. Sore, tender breasts 3. Knots in

them.” Def.’s Ex. 1, at 8; Pl.’s Ex. 1, at 1013. Dr. Hill-Daniel testified that the

individual who recorded the plaintiff’s “reason for appointment” was the medical

assistant with whom she was working on December 3, 2009. Trial Tr. ECF No. 58 at

3:17–:21. The progress note for the December 3, 2009, visit also contains Dr. Hill-

Daniel’s notes, which stated in pertinent part: “Patient presents for new complaint of

23

breast tenderness and lumpiness. Pt states tender all the time denies pregnancy and

no change with menstrual cycle. Pt also concerned that breast are [sic] lumpy.”

Def.’s Ex. 1, at 8; Pl.’s Ex. 1 at 1013.

2. Dr. Hill-Daniel testified that her note “tender all the time” meant to her that the patient did

not feel pain that is waxing and waning. Trial Tr. ECF No. 58 at 6:3–6 (“[I]t’s not waxing

and waning, the pain is not in the morning versus in the evening. She is specifically saying

that she feels uncomfortable all the time with the pain.”). She further interpreted her note,

“no change with menstrual cycle,” explaining this meant that there was no change in the

symptoms associated with the patient’s menstrual cycle, and her observation that the plaintiff

was menstruating during the time of the visit. Id. at 5:15–:21.

3. The defendant disputes whether the plaintiff told Dr. Hill-Daniel or the medical assistant

about her family history of breast cancer, and whether Dr. Hill-Daniel asked the plaintiff

about her family history of breast cancer beyond her first-degree relatives.

a) The plaintiff testified emphatically that, at the December 3, 2009 appointment, she

told one of the health care providers with whom she spoke about her family history of

breast cancer. Trial Tr. ECF No. 55 at 79:13–:16 (“Q: And you mentioned that you

had discussion with Dr. Hill-Daniel about cancer. Would you describe for us what

the nature of the discussion was? A: I told her I had two grandmothers that had

breast cancer.”), 128:17–:18 (“Yes, I told them at Unity that I had a family history of

breast cancer.”), 129:5–:6 (“I told them numerous times when I was, when I seen the

nurse before I seen Dr. Hill-Daniel.”). Indeed, the plaintiff explained that the fact that

both her grandmothers suffered from breast cancer worried her when she felt a knot in

24

her breast and is the reason that she made the appointment to see Dr. Hill-Daniel in

December 2009 and expressly requested a mammogram. Id. at 78:11–:16.

b) The note prepared by the medical assistant makes no mention of the plaintiff’s

grandmothers’ breast cancer. The progress report from the December 3, 2009

appointment prepared by Dr. Hill-Daniel states only that “Pt denies family hx of

breast ca in first degree relative.” Def.’s Ex. 1 at 8. Dr. Hill-Daniel testified that the

first-degree relative is “a mother, sister, father.” Trial Tr. ECF No. 58 at 6:17. A

grandparent is a second degree relative. Id. at 7:14.

c) Although Dr. Hill-Daniel’s progress note indicates information only about cancer in a

“first-degree relative,” Dr. Hill-Daniel testified that she recalls asking the plaintiff

more broadly whether she had any family history of breast cancer, to which the

plaintiff said “no.” Trial Tr. ECF No. 58 at 6:4–:5.

4. Dr. Hill-Daniel performed a clinical breast exam on the plaintiff, which the plaintiff

described as “a quick pat-down,” Trial Tr. ECF No. 55 at 79:4–:9; Trial Tr. ECF No. 58 at

9:16–:20, and found no abnormalities, Trial Tr. ECF No. 58 at 62:6–:9. Dr. Hill-Daniel did

not feel, or palpate, a mass in the plaintiff’s breast or her lymph nodes during the exam, nor

did she find any retractions. Pl.’s Ex. 1, at 1066; Def.’s Ex. 1, at 8; Trial Tr. ECF No. 70 at

58:7–:15. A retraction looks like a pucker in the skin, and can be a symptom of breast cancer

if the cancer is close to the skin. Trial Tr. ECF No. 70 at 58:7–:15. Dr. Hill-Daniel testified

that she did not write down any differential diagnosis – the list of possible diagnoses – in the

progress note. Trial Tr. ECF No. 58 at 15:1–16:7. Nevertheless, she testified that her top

two possible diagnoses were fibrocystic changes related to hormones and underwire bra. Id.

at 55:15–:17. The term “fibrocystic changes,” also called fibrocystic disease, means normal

25

breast tissue that is tender and feels lumpy due to hormonal changes with a woman’s

menstrual cycle. Id. at 56:14–:17. Dr. Hill-Daniel acknowledged, however, that she did not

record “fibrocystic changes” as her diagnosis on the progress note; rather, she entered the

diagnostic code “breast disorder not otherwise specified.” Id. at 13:2–:22; Pl.’s Ex. 1, at

1066; Def.’s Ex. 1, at 8. Dr. Hill-Daniel testified that breast cancer was not on her

differential diagnosis. Trial Tr. ECF No. 58 at 55:11–:14.

5. The plaintiff testified that Dr. Hill-Daniel told her that she was too young to have breast

cancer and too young for a mammogram. Trial Tr. ECF No. 55 at 79:10–:19. Dr. Hill

Daniel denied telling the plaintiff that she was too young to have breast cancer, Trial Tr. ECF

No. 58 at 14:18–:24, but acknowledged that she reassured the plaintiff that her concerns were

benign, id. at 13:21–:22. The progress note reflects that Dr. Hill-Daniel “reassured [the

plaintiff] about the benign nature of her concern” and determined that “no imaging [was]

warranted at this time.” Pl.’s Ex. 1, at 1066; Def.’s Ex. 1, at 8. Dr. Hill-Daniel

recommended that the plaintiff change her bra to non-underwire, and prescribed 800 mg of

Ibuprofen three times per day with one refill. Pl.’s Ex. 1, at 1066; Def.’s Ex. 1, at 8; Trial Tr.

ECF No. 58 at 14:5–:9.

6. On the progress note, the letters “PRN,” which means “as needed,” are written under the title

“follow-up.” Pl.’s Ex. 1, at 1066; Def.’s Ex. 1, at 8; Trial Tr. ECF No. 58 at 16:8–:9. Dr.

Hill-Daniel testified that she asked the plaintiff “to follow up if she didn’t have any relief of

the pain, or if her symptoms persisted.” Trial Tr. ECF No. 58 at 16:12–18. She did not

schedule or direct the plaintiff to return for a follow-up appointment within any specific time

frame. Trial Tr. ECF No. 70 at 61:15–:23. The plaintiff testified that Dr. Hill-Daniel never

told her that she should follow-up under any circumstances. Id. at 20:22–21:7.

26

7. The standard of care experts disagreed as to what the national standard of care required Dr.

Hill-Daniel to do for a patient presenting with the plaintiff’s symptoms.

a) The plaintiff’s expert, Dr. Sutherland, testified that when a patient presents

complaining of a knot in one breast and noncyclic pain, and with a family history of

two grandmothers with breast cancer, the national standard of care for a family care

doctor requires the doctor to order diagnostic imaging, even if the doctor does not

palpate a mass. Trial Tr. ECF No. 69 at 47:12–:23. At the very least, the national

standard of care requires the doctor to schedule a follow-up visit for the patient thirty

to sixty days later to determine whether the symptoms persist and still warrant

imaging. Id. at 37:19–:24.

b) The plaintiff’s expert, Dr. Margo, testified that when a patient presents complaining

of a palpable lump, tenderness and pain – even if the doctor does not feel a mass

herself – the national standard of care for a family care doctor requires the doctor to

include breast cancer in her differential diagnosis and schedule a follow-up visit for

the patient for four to six weeks later to ensure that the problem has gone away and to

reexamine the patient at a different stage in her menstrual cycle. Trial Tr. ECF No.

70 at 60:22–61:2 (“[T]he national standard required her to make sure she had a

follow-up visit to make sure the problem went away and that she informed the patient

of the possibility that this wasn’t benign, that maybe it probably was, but that we

can’t be sure until we follow it through.”), 61:15–62:3 (“Q: And what specific

follow-up was Dr. Hill-Daniel required to order? A: To make sure she had an

appointment to follow up in the next four to six weeks.”), 64:4–:8 (“[B]reast cancer

has to be on the diagnosis since that’s the most dangerous thing to miss.”).

27

According to Dr. Margo, the national standard of care does not require the doctor

under those circumstances to order imaging before the follow-up visit. Id. at 62:24–

63:2.

c) The defendant’s expert, Dr. Bethea, testified because the patient was a twenty-four

year old woman presenting with soreness and knots in both breasts, and upon

examination the physician felt no masses, but made “bilateral fibrocystic findings,”

Dr. Hill-Daniel met the national standard of care for a family practice physician by

prescribing pain medication and a different bra. Trial Tr. ECF No. 73 at 22:9–:11,

30:14–:24. He testified that under those circumstances, the national standard of care

for a family practice physician does not require referral for imaging. Id. at 29:21–

30:5. He also testified that it would be inappropriate to list cancer on the differential

diagnosis because cancer would be “so far down on the list of probabilities.” Id. at

31:24–32:14.

d) The defendant’s expert, Dr. Koch, testified that because the patient is a twenty-four

year old woman complaining of “sore, tender breasts, plural . . . and she feels knots in

them,” has no family history of breast cancer, and upon physical examination the

physician finds no masses, no retractions, and no lymph nodes, Dr. Hill-Daniel met

the national standard of care by advising the patient to change the type of bra she

wears, prescribing pain medication, and asking her to follow up if the problem does

not go away. Trial Tr. ECF No. 73 at 77:9–79:3, 83:2–:18, 86:19–87:7. He testified

that under those circumstances, the national standard of care for a family practice

physician does not require referral for imaging. Id. at 80:1–:3, 85:10–86:17. He also

testified on cross-examination, in concurrence with the plaintiff’s experts, that it

28

would violate the national standard of care for a physician under those circumstances

not to tell the patient to come back if the breast problems continue. Id. at 128:8–:17.

Moreover, in further concurrence with the plaintiff’s experts, Dr. Koch opined that if

a patient presents with bilateral tenderness in her breast and a discrete lump or knot,

and pain in one breast, and the physician could not feel the lump, the national

standard of care would require the physician to bring the patient back within six

weeks to three months for follow-up. Id. at 129:3–:25.

F. THE PLAINTIFF’S MEDICAL HISTORY FROM JANUARY 2009 TO

AUGUST 2010

1. The plaintiff returned to Unity on January 8, 2010 – thirty-six days after her December 3,

2009 visit – for an appointment with Dr. Hill-Daniel regarding fertility issues. Trial Tr. ECF

no. 58 at 19:12–:14, 20:8–:12; Pl.’s Ex. 1, at 1064; Def.’s Ex. 1, at 9. Dr. Hill-Daniel did not

ask the plaintiff about her breast symptoms during that visit or examine her breasts. Trial Tr.

ECF No. 58 at 21:7–:9, 71:25–72:11. The Ibuprofen prescribed by Dr. Hill-Daniel for the

plaintiff at the previous appointment appears on the progress note for the January 8, 2010

visit as a “current medication,” Pl.’s Ex. 1, at 1064; Def.’s Ex. 1, at 9, and Dr. Hill-Daniel

testified that she was aware that the plaintiff was continuing to take the Ibuprofen. Trial Tr.

ECF No. 58 at 19:12–:14, 20:8–:12.

2. The plaintiff returned to Unity again on April 30, 2010, for a check-up and for problems with

her eyes. Pl.’s Ex. 1, at 1062; Def.’s Ex. 1, at 11. Dr. Hill-Daniel testified that she did not

recall any conversation with the plaintiff about her breasts during that visit, Trial Tr. ECF

No. 58 at 21:17–22:18, 48:17–:25. She also testified that during that visit, she did not

specifically ask the plaintiff if she was having problems with her breasts, Trial Tr. 53:17–:22,

although she testified from recollection that she did ask the plaintiff if she had any other

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issues or complaints, to which the plaintiff responded “no,” id. at 23:2–:4. The plaintiff’s

testimony confirmed that Dr. Hill-Daniel did not inquire about her breasts at this follow-up

visit: when asked if she recalled whether Dr. Hill-Daniel asked her if she was having any

problems with her breasts at the April 30, 2010 visit, the plaintiff responded, “no.” Trial Tr.

ECF No. 55 at 83:15–:21.

3. On May 19, 2010, the plaintiff was seen by an emergency physician, Dr. Carter, at Howard

University Hospital. Pl.’s Ex. 104, at 23061; Def.’s Ex. 3, at 68; Trial Tr. ECF No. 72

116:5–:11. The chief complaint as documented on the record for that visit is “knot on l[ef]t

breast,” Pl.’s Ex. 104, at 23061; Def.’s Ex. 3. The medical history recorded by Dr. Carter

included “left breast tenderness for greater than a year,” and indicated that the pain was

“continual.” Pl.’s Ex. 104, at 23062; Def.’s Ex. 3, at 69; Trial Tr. ECF No. 72 at 119:11–:12,

119:21–:24. Dr. Carter’s notes also state that he found no discharge from the nipple, no

warmth, and no redness – meaning no signs of infection. Pl.’s Ex. 104, at 23062; Def.’s Ex.

3, at 69; Trial Tr. ECF No. 72 at 122:18–123:2. There is no indication in the notes that the

plaintiff had any ulcerations or skin nodules on her breasts. Pl.’s Ex. 104, at 23062; Def.’s

Ex. 3, at 69. Dr. Carter testified that he palpated the plaintiff’s breasts and found tender cysts

in both breasts, with one large tender cyst in the left breast, and tenderness in both breasts.

Trial Tr. ECF No. 72 at 123:5–:8, 134:2–:5. Dr. Carter documented the results of the exam

with a diagram in the patient record. Pl.’s Ex. 104, at 23062; Def.’s Ex. 3, at 69. Dr. Carter

testified that he wrote, “Patient advised to follow up with primary care provider for full

evaluation, possible biopsy” in the plaintiff’s record, which means that he probably told the

plaintiff to see her primary care doctor and get a further workup. Trial Tr. ECF No. 72 at

123:7–:8, 124:1–:18; Pl.’s Ex. 104, at 23062; Def.’s Ex. 3, at 69. He prescribed 800mg of

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Motrin and Tylenol with Codeine. Pl.’s Ex. 104, at 23065; Def.’s Ex. 3, at 72. The plaintiff

signed the discharge form and was given a copy to take home. Pl.’s Ex. 104, at 23065;

Def.’s Ex. 3, at 72; Trial Tr. ECF No. 72 at 135:12–:16. Among the “additional notes”

written on the discharge form was, “Follow up with your primary care doctor.” Pl.’s Ex.

104, at 23065; Def.’s Ex. 3, at 72. The plaintiff testified that she did not remember this visit

to Howard University Hospital. Trial Tr. ECF No. 55 at 84:6–:8 (“Q: Do you recall going to

Howard University Hospital on May 19th, 2010? A: I don’t remember that visit.”); id. at

87:22–:25 (“The Court: Now, Ms. Rhodes, it’s clear from your responses to the last several

questions that you don’t have a memory of going to Howard on May 19th, 2010, right? A:

Right.”).

4. On August 9, 2010, the plaintiff visited the emergency room at Fort Washington Hospital.

Pl.’s Ex. 6, at 6003. The patient record for the plaintiff’s visit, which was completed by a

health care provider, lists her complaint as “knot in left breast x 3 years.” Id. The plaintiff

testified that she went to Fort Washington because she “had soreness and tenderness in [her]

breast and pain and a knot in [her] left breast.” Trial Tr. ECF No. 55 at 89:21–:24. She

further testified that she did not recall telling anyone that the knots had been present for three

years, and that the knots had only been present since 2009. Id. at 89:21–:24, 90:6–:8.

According to the plaintiff, the emergency room doctors at Fort Washington Hospital told her

to set up an appointment with her primary care doctor for a mammogram because something

very serious was going on with her left breast. Id. at 90:12–:18. The discharge paper from

that visit lists the diagnosis as “left breast lumps,” and under “discharge instructions,” is

written, “you need f/u for further evaluation. Very important.” Pl.’s Ex. 6, at 6002, 6004.

The plaintiff testified that this was the first time that a doctor had told her to schedule an

31

appointment for a mammogram and that it was important to do so. Trial Tr. ECF No. 55 at

91:22–:25.

G. PLAINTIFF’S VISIT WITH DR. HILL-DANIEL ON OCTOBER 18, 2010

1. On August 10, 2010 – the day after her visit to Fort Washington Hospital – the plaintiff

called Unity and asked for the first available appointment to see Dr. Hill-Daniel because she

needed a mammogram. Trial Tr. ECF No. 55 at 92:1–:13. She was given an appointment for

September 9, 2010. Pl.’s Ex. 33. Unity cancelled that appointment shortly before it was

scheduled to take place because Dr. Hill-Daniel was scheduled to be on hospital rounds that

week. Pl.’s Ex. 33; Trial Tr. ECF No. 58 at 25:2–:16, 107:21–22. Unity rescheduled the

appointment for September 24, 2010. Pl.’s Ex. 33. The September 24, 2010 appointment

was also cancelled by Unity. Pl.’s Ex. 33; Trial Tr. ECF No. 58 at 25:2–19, 107:24–108:4.

Dr. Hill-Daniel testified that Unity cancelled the appointment on the day it was scheduled to

take place because she was called to the hospital. Trial Tr. ECF No. 58 at 25:17–:19. Unity

rescheduled the appointment for October 18, 2010. Pl.’s Ex. 33. Dr. Hill-Daniel testified

that the plaintiff could have seen another doctor or come in to Unity as a walk-in patient if

she did not want to wait to see Dr. Hill-Daniel. Trial Tr. ECF No. 58 at 25:25–26:15. The

defendant presented no evidence that the plaintiff was told that these options were available

to her at the time, nor did the defendant present any evidence that the personnel at Unity,

who spoke to the plaintiff about the original or the re-scheduled appointments, made any

inquiry about why the plaintiff was requesting an mammogram as soon as possible in order

to evaluate the urgency of the need for an appointment.

2. The plaintiff was seen by Dr. Hill-Daniel on October 18, 2010, more than two months after

her initial call to Unity to schedule an appointment. Pl.’s Ex. 33. The Unity progress note

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for that appointment and Dr. Hill-Daniel’s testimony reflect that the plaintiff presented with a

“new complaint of bumps in her breast,” and that the plaintiff could feel bumps in her left

breast that had been getting bigger. Def.’s Ex. 1, at 12; Trial Tr. ECF No. 58 at 24:15–:18.

The progress note also reflects that the plaintiff had been seen in the emergency room

regarding the bumps and that she was told to follow up with her doctor to get a referral for a

mammogram. Def.’s Ex. 1, at 12; Trial Tr. ECF No. 58 at 24:18–:21. The plaintiff testified

that she showed the papers from Fort Washington Hospital to Dr. Hill-Daniel “for her

actually to believe me about what I was saying about my breasts . . . because they had seen

something on my breasts that she didn’t see, for me to get a mammogram.” Trial Tr. ECF

No. 55 at 96:1–:10.

3. At the October 18, 2010, visit, Dr. Hill-Daniel performed a breast exam and palpated

multiple nodules in the plaintiff’s left breast and an enlarged lymph node in her left axilla

(under her armpit). Trial Tr. ECF No. 58 at 27:10–:15; Def.’s Ex. 1, at 12. Dr. Hill-Daniel

also observed multiple scars on the left breast, some of which were overlying nodules. Trial

Tr. ECF No. 58 at 27:10–:13; Def.’s Ex. 1, at 12. Dr. Hill-Daniel testified that an enlarged

lymph node can be a sign of infection or breast cancer. Trial Tr. ECF No. 58 at 27:16–:25.

She also testified that she was not sure if the plaintiff had an infection, abscess, or cancer, but

that she found no indication of any infection, such as drainage from the site, fever, or chills.

Id. 28:2–:4, 28:10–:13. The assessment or diagnosis that Dr. Hill-Daniel wrote on the

progress note was “breast neoplasm not otherwise specified.” Def.’s Ex. 1, at 12.

4. Dr. Hill-Daniel ordered a referral for the plaintiff to get a breast ultrasound. Def.’s Ex. 1, at

12. The progress note for the October 18, 2010 appointment reflects a “follow up”

timeframe of six weeks. Id. Dr. Hill-Daniel testified that she “felt six weeks was enough

33

time for [the plaintiff] to get the referral, make her appointments, get the exam done, and

report back to [her].” Trial Tr. ECF No. 58 at 29:3–:5.

5. The parties dispute whether Dr. Hill-Daniel discussed the urgency of obtaining an ultrasound

with the plaintiff.

a) Dr. Hill-Daniel testified that she “basically stressed the importance of her to get the

study done and come back to me for the results so we could figure out what else we

needed to do.” Trial Tr. ECF No. 58 at 29:1–:3; see also id. at 95:16–:18 (“I told her

that she needed to get [the ultrasound] done. And I told her, because of this I’m

going to give you the referral now so you can go ahead and schedule.”), 95:22–:24 (“I

told her that I didn’t know what the mass was, that she needs to get the ultrasound

done so we could figure out what was going on.”).

b) When asked whether Dr. Hill-Daniel told her how quickly she was supposed to have

the ultrasound performed, the plaintiff testified that she did not discuss the ultrasound

with her. Trial Tr. ECF No. 55 at 97:3–:6 (“She didn’t give me no discussion about

the ultrasound.”). There is no indication on the progress note that Dr. Hill-Daniel told

the plaintiff why she needed an ultrasound or with what urgency. The plaintiff

emphasizes that this is significant because when Dr. Hill-Daniel counseled the

plaintiff that her complaints were “benign” during the December 3, 2009, visit, she

documented the conversation on the progress note. Pl.’s Ex. 1, at 1066; Def.’s Ex. 1,

at 8.

H. UNITY’S REFERRAL PROCESS

1. The plaintiff was insured by D.C. Chartered Health Plan (“D.C. Chartered”) for the entire

period of time relevant to this action. See Pl.’s Ex. 55 (D.C. Chartered Health Plan referral

34

verifications for Shilisa Rhodes). D.C. Chartered requires Unity to obtain an insurance

authorization, called a “DIVA,” before a patient can receive a referral for an ultrasound or

mammogram at Providence Hospital. See Trial Tr. ECF No. 58 at 29:21–24, 30:18–:24;

Trial Tr. ECF No. 72 at 144:8–:10. Unity employs care management support persons to

process referrals and obtain authorizations. Trial Tr. ECF No. 72 at 9:11. Terita Jones is the

care management support person who works with Dr. Hill-Daniel, as well as three other

doctors, to process over fifty referrals each day. Id. at 14:12–:17, 26:3–:8. Ms. Jones

testified that the doctors send referral forms to her electronically. Id. at 14:12–:17, 16:9–:23.

She then prints out the form, called the “Unity Physician Referral” form (“Referral”), calls

the insurance company, and inputs the referral information by following the prompts on the

telephone. Id. at 18:13–:22. She then enters the authorization code on the Referral

electronically, and D.C. Chartered faxes the DIVA to her. Id. at 16:9–:23. The patient needs

to present both the Referral and the DIVA at Providence Hospital to obtain an ultrasound or

mammogram. Trial Tr. ECF No. 58 at 30:18–:24.

2. The Referral and the DIVA contain two numeric codes: the ICD-9 and the CPT. Trial Tr.

ECF No. 72 at 143:13–:15, 143:20–:24. The ICD-9 code corresponds to the diagnosis given

to the patient. Trial Tr. ECF No. 58 at 30:5–:13. The CPT code corresponds to the medical

procedure being ordered. Id. at 30:14–:16. The codes on the DIVA and the Referral must

match; if they don’t match, the patient cannot have the procedure. Trial Tr. ECF No. 72 at

151:19–:25. The referring doctor is responsible for choosing the correct codes. Trial Tr.

ECF No. 58 at 102:21–103:1.

3. The patient must pick up the DIVA and referral from the care management support person,

who in this case was Ms. Jones, and bring those forms to Providence at the time of the

35

scheduled referred procedure. Trial Tr. ECF No. 58 at 30:18–:24. Sometimes Unity

provides the patient with the DIVA and referral on the same day as the patient’s visit, and

sometimes the patient has to return to Unity a few days later to pick the forms up. Trial Tr.

ECF No. 72 at 88:7–:11. The referring physician may mark a referral “urgent.” Trial Tr.

ECF No. 58 at 44:25. In that case, the care management support person is supposed to take

the referral out of turn and work on it immediately to get the authorization, and provide the

patient with the forms quickly. Id. at 44:25–45:4. If the forms are prepared on a different

day than the patient’s visit with Unity, Ms. Jones calls the patient by phone to advise that the

forms are ready for pick-up. Trial Tr. ECF No. 72 at 25:20–26:18. Ms. Jones does not

communicate with the patient about the urgency of the referred procedure and the scheduling

of the referred procedure with Providence or other health care facility remains the patient’s

responsibility. Id. at 27:2–:21, 88:7–:22.

4. Marsha Williams, a Providence Hospital front desk registration clerk who schedules

appointments for diagnostic and screening mammograms and breast ultrasounds, testified

that in 2010, Providence Hospital kept a schedule of mammograms for up to a period of

ninety days into the future. Trial Tr. ECF No. 72 at 156:11–:13. She also testified that the

scheduling clerk determines an available date for imaging studies, which depends upon the

urgency of the test. Id. at 144:11–:20. Ms. Williams testified that in 2010 and 2011,

ultrasounds were generally scheduled about a week out, mammograms about a day out, and

diagnostic mammograms, about two to three days out. Id. at 146:19–147:4. Ultrasounds

take longer to schedule because the technician works only 8:00 a.m. to 11:00 a.m., which

means that Providence is able to perform only five ultrasounds per day. Id. at 145:20–

146:11.

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I. THE PLAINTIFF’S DIAGNOSTIC TESTS

1. Dr. Hill-Daniel generated a referral for Ms. Jones to obtain an ultrasound at Providence

Hospital on the day of the plaintiff’s October 18, 2010 visit, and she asked Ms. Jones to

obtain the authorization so that the plaintiff could leave Unity with the Referral and DIVA

in-hand. Trial Tr. ECF No. 58 at 29:8–:11; Def.’s Ex. 2, at 1. Ms. Jones was not instructed

to, and did not, tell the plaintiff anything about the urgency in making the ultrasound

appointment, how long she should take before making the appointment, or when the

appointment should be scheduled. Trial Tr. ECF No. 72 at 67:7–:16. The Referral lists the

authorization end date for the ultrasound as January 16, 2011, or three months from the date

of the plaintiff’s October, 2010 visit. Id. at 68:6–:15. Def.’s Ex. 1, at 12. The Referral

allows the patient to make an appointment between the date of issuance and the referral

verification authorization end date. 3rd FOF Table ¶ 121; Pl.’s Ex. 55, at 55004; Trial Tr.

ECF No. 72 at 67:17–68:5.

2. Providence Hospital does not have a record of when the plaintiff called to schedule her

ultrasound appointment, but it is undisputed that the appointment was scheduled for

November 3, 2010, at 10:30 a.m. Pl.’s Ex. 1, at 1059; Def.’s Ex. 2, at 3. The plaintiff went

to Providence Hospital that morning, but she was unable to have the ultrasound because the

Referral contained an IDC-9 code, which had been provided by Dr. Hill-Daniel, that was

incorrect. Trial Tr. ECF No. 58 at 103:2–:13; ECF No. 72 at 145:7–:11, 157:13–:14. Ms.

Williams testified that the IDC-9 code on the plaintiff’s Referral was “239.3,” which is an

unspecific diagnosis code that Providence Hospital does not use because it does not tell the

hospital exactly what is wrong with the patient. Trial Tr. ECF No. 72 at 157:18–158:9. Ms.

Williams called Unity at 10:30 a.m. that day and spoke with Ms. Jones. Id. at 22:14–:23;

37

Pl.’s Ex. 1, at 1059. She told Ms. Jones that the plaintiff was at Providence Hospital, and that

the ICD-9 code needed to be changed for the plaintiff to get the ultrasound. Trial Tr. ECF

No. 72 at 22:15–:16.

3. Ms. Jones testified that she notified Dr. Hill-Daniel about the need for the code change by

sending her an electronic alert through the electronic records system, which signaled Dr.

Hill-Daniel that she had a message. Trial Tr. ECF No. 72 at 23:13–24:3. The message

stated, “Patient is at appt ICD-9 code needs to be changed if you can please change code so

that pt can be seen her appt is at 10:30 tech person leaves at 11:00 am this is for mammo

procedure code should be 611.72.” Id. at 23:2–:10; Pl.’s Ex. 1, at 1059. Ms. Jones also

testified that she went to Dr. Hill-Daniel’s office to tell her that about the electronic alert, but

Dr. Hill-Daniel was not in her office. Trial Tr. ECF No. 72 at 24:4–:10, 25:4–:11. Dr. Hill-

Daniel changed the code at 12:37 p.m. and sent the Referral back to Ms. Jones. Id. at 24:11–

:18. Ms. Jones faxed the Referral and DIVA back to Providence sometime between 1:00

p.m. and 3:23 p.m. the same day. Id. at 29:15–30:8, 30:20–:25. By that time, however, the

technician at Providence Hospital had left for the day. Id. at 23:2–:10. After faxing the

referral and DIVA to Providence Hospital, Ms. Jones called the plaintiff and told her that the

Referral had been faxed to Providence Hospital and that she could pick up a copy from

Unity. Id. at 31:2–:16. Ms. Jones testified that it was necessary for the plaintiff to pick up

the Referral from Unity at that point because it had been faxed to Providence after 11:00 a.m.

Id. at 31:17–:21. The plaintiff picked up the referral the next day on November 4, 2010. Id.

at 34:4–:22.

38

4. The ultrasound was rescheduled for December 14, 2010, and was performed that day, almost

two full months after Dr. Hill-Daniel had palpated left breast lumps and an enlarged lymph

node. Pl.’s Ex. 13, at 1; Def.’s Ex. 5, at 1.

5. The ultrasound report of December 14, 2010, describes the left breast as having a solid mass

at one o’clock, which corresponds to the palpable mass, small focal calcifications within the

mass, and small nodules in the breast tissues which correspond to dark skin lesions. Pl.’s Ex.

13, at 1; Def.’s Ex. 5, at 1. The report stated that “while the [large mass with calcifications]

may be a fibroadenoma, more aggressive lesion cannot be excluded.” Id. The radiologist

recommended a left mammogram and noted, “[u]nfortunately this exam cannot be authorized

at this time and needs to be scheduled.” Id. Dr. Hill-Daniel testified that she assumed the

radiologist meant that the plaintiff did not have the DIVA authorization necessary to perform

the recommended mammogram. Trial Tr. ECF No. 58 at 39:22–40:4.

6. Dr. Hill-Daniel received the ultrasound report in the mail almost two weeks later, on

December 27, 2010. Trial Tr. ECF No. 58 at 41:7–8 She generated a referral for a

mammogram three days later, on December 30, 2010, sent it to Ms. Jones for authorization,

and asked Ms. Jones to call the plaintiff when it was ready. Trial Tr. ECF No. 58 at 41:11–

:15. Although Dr. Hill-Daniel marked the Referral “urgent” on December 30, 2010 so the

authorization would be completed before the end of the day, the plaintiff was not notified that

it was ready for pick up until January 7, 2011, more than a week after Dr. Hill-Daniel

approved the referral and more than three weeks after the ultrasound showed the possibility

of an “aggressive lesion.” Trial Tr. ECF No. 72 at 39:12–:25, 40:25–41:2.

7. Ms. Jones did not receive the referral from Dr. Hill-Daniel until January 6, 2011, because she

had been on vacation from December 28, 2010 to January 5, 2011. Trial Tr. ECF No. 72 at

39

36:3–:12. On January 6, 2011, at 4:18 p.m., Ms. Jones tried to get the DIVA authorization,

but was unsuccessful because the CPT code used by Dr. Hill-Daniel was, again, wrong. Id.

at 36:9–:25, 37:1–:12. The code could not be changed at that time because Dr. Hill-Daniel

had already left for the day. Id. 36:23–37:9. Dr. Hill-Daniel corrected the code the following

day, January 7, 2011. Id. at 37:1–:12. The same day, the plaintiff was notified by phone that

the referral was ready to be picked up. Id. at 39:1–:7.

8. Dr. Hill-Daniel did not call the plaintiff or otherwise directly communicate with the plaintiff

about the mammogram referral. Trial Tr. ECF No. 58 at 97:22–98:2, 99:10–:14. She did not

communicate the urgency of the need to get a mammogram to the plaintiff, did not tell Ms.

Jones to communicate the urgency to the plaintiff, and did not write anything on the

mammogram Referral that would indicate how quickly the mammogram should be done.

Trial Tr. ECF No. 58 at 98:3–99:9. The “urgent” notation that communicates the urgency of

processing the Referral to Ms. Jones does not appear on the forms that the patient receives.

Trial Tr. ECF No. 72 at 39:15–:25. Ms. Jones also did not communicate to the plaintiff about

the urgency of obtaining the mammogram. Id. at 40:18–:23. The Referral for the

mammogram listed the authorization end date as October 18, 2011, providing a nine-month

period to obtain the mammogram. Pl.’s Ex. 57, at 1061; Def.’s Ex. 2, at 5.

9. The plaintiff received a mammogram at Providence Hospital on February 9, 2011. Trial Tr.

ECF No. 58 at 43:2–:5. The next day, on February 10, 2011, the radiologist called Dr. Hill-

Daniel and reported his concerns that the mammogram was highly suspicious for cancer and

recommended that Dr. Hill-Daniel send the plaintiff for a biopsy. Id. at 43:13–:22. Dr. Hill-

Daniel telephoned the plaintiff to let her know that she was generating a referral to a surgeon

so that the plaintiff could get a biopsy. Id. at 111:8–:10. Dr. Hill-Daniel referred the plaintiff

40

to Providence surgeon Mark Johnson, M.D. for the biopsy. Pl.’s Ex. 44, at 110:21–111:7;

Def.’s Ex. 2, at 6. Although Dr. Hill-Daniel testified that she could have called the

Providence Hospital radiology department – where she had admitting privileges – to try to

get the plaintiff’s appointment moved up, Dr. Hill-Daniel did not contact Dr. Johnson or his

office to expedite the scheduling of the biopsy. Trial Tr. ECF No. 58 at 116:8–117:4; Pl.’s

Ex. 44, at 110:21–111:17. Dr. Hill-Daniel generated the referral, and the plaintiff was

responsible for picking it up from the Unity clinic, calling Dr. Johnson’s office, and

scheduling the biopsy. Pl.’s Ex. 44, at 108:18–:22.

10. The plaintiff saw Dr. Johnson in his office on March 2, 2011, for a consultation. Pl.’s Ex. 1,

at 1040; Def.’s Ex. 7. The breast biopsy was performed one week later, on March 8, 2011.

Pl.’s Ex. 3, at 3001; Def.’s Ex. 8, at 3001. The results of the breast biopsy indicated that the

mass in the plaintiff’s left breast was invasive ductal carcinoma. Pl.’s Ex. 3, at 3001; Def.’s

Ex. 8, at 3001.

11. Both parties agree that when the plaintiff was diagnosed with breast cancer on March 8,

2011, she had advanced stage incurable breast cancer. 3rd FOF Table ¶ 333 (citing Trial Tr.

ECF No. 55 at 111:7–:9). A PET scan performed on March 28, 2011 and a bone scan

performed on March 31, 2011 showed that the cancer had metastasized to bones in her right

shoulder and left scapula. Pl.’s Ex. 8 at 8097, Trial Tr. ECF No. 57 at 65:12–:16. Dr. Feigert

testified that the March PET scan showed that the cancer had metastasized to at least eight

different sites in her bones. Trial Tr. ECF No. 57 at 30:6–:8. Plaintiff does not dispute this.

3rd FOF Table ¶ 374.

41

12. The experts dispute whether Dr. Hill-Daniel’s role in the five-month delay between the

plaintiff’s October 18, 2010 visit and her breast cancer diagnosis violated the applicable

standard of care.

a) The plaintiff’s experts, Dr. Sutherland and Dr. Margo, opined that Dr. Hill-Daniel’s

failure to expedite the diagnostic tests violated the national standard of care for a

family care doctor. Dr. Sutherland testified that in light of Dr. Hill-Daniel’s findings

during the plaintiff’s October 18, 2010 visit, the national standard of care required her

to ensure that the plaintiff got a diagnostic ultrasound within a week, Trial Tr. ECF

No. 69 at 54:2–:12, and to obtain a diagnosis within two to three weeks of the

October visit, id. at 54:19–55:5. He testified that it was Dr. Hill-Daniel’s

responsibility to keep track of the patient and follow-up herself, or ask her staff to

follow-up, if she did not receive the diagnostic test results within this time period. Id.

at 56:13–57:7. Dr. Margo opined that Dr. Hill-Daniel ordered the tests in the correct

order – ultrasound, then mammogram and, finally, biopsy – but that the national

standard of care required Dr. Hill-Daniel to ensure that the ultrasound was performed

within two weeks of the October visit, and that the final breast cancer diagnosis was

made within two to three weeks of the October visit. Trial Tr. ECF No. 70 at 82:4–

83:5.

b) The defendant’s expert, Dr. Bethea, testified that Dr. Hill-Daniel did not violate the

national standard of care by ordering an ultrasound, mammogram, and biopsy in that

progression. Trial Tr. ECF No. 73 at 41:4–:13, 43:3–:9, 43:18–44:9. In response to

questions from the Court, however, Dr. Bethea testified that Dr. Hill-Daniel’s

detection of lymph node involvement was a “game-changer,” and that, with that

42

finding, it was not appropriate to wait six weeks before an ultrasound was performed.

Id. at 40:24–41:4. He also testified that “if you have an isolated lesion and an axillary

node, you can skip both [the ultrasound and mammogram] and go straight to biopsy

and be well in the standard of care.” Id. at 42:5–:8.

c) Notably, while the progression of diagnostic tests may have been satisfactory, Dr.

Bethea was not so sanguine about the timing of the diagnostic tests in this case. Dr.

Bethea testified that the timing of the tests did not satisfy “best practices,” which is

the standard of care that he conforms to as a physician. Trial Tr. ECF No. 73 at

45:15–:17 (“If we were speaking best practice, I would not be here defending this

situation.”). Nonetheless, by drawing a distinction between “best practices” and “the

national standard of care,” Dr. Bethea testified that the timing of the tests did satisfy

the standard of care, which he defined as taking into consideration the circumstances

under which the care is delivered. Id. at 45:4–:10 (“The standard of care, as I said

earlier, is what a patient has the right to expect under the circumstances in which it’s

delivered. There are very different sets of circumstances within the medical world,

and it’s becoming more and more different as time goes on, unfortunately.”); 46:19–

:23 (“These days, unfortunately, doctors lose control of the situation in big medical

centers, such as where this occurred. They don’t lose control of it in a practice like

mine. So it’s two entirely different circumstances.”); 47:5–:11 (“So there are all sorts

of situations, medical, political, insurance, money. The whole situation is changing

the approach, in my opinion, much for the worse. This is a good example of that. So

you can be within the standard of care, as I think this situation was, but be far outside

the best practice model.”).

43

d) The defendant’s expert, Dr. Koch, testified that Dr. Hill-Daniel satisfied the national

standard of care on October 18, 2010, by prescribing a six-week follow-up period for

the plaintiff to obtain an ultrasound. Trial Tr. ECF No. 73 at 101:25–102:7. He

testified that the plaintiff’s failure to follow up within that timeframe was her

responsibility. See id. at 105:17–:22. He also testified that Dr. Hill-Daniel acted

within the national standard of care by ordering an ultrasound, mammogram, and

biopsy in that order, id. at 103:19–104:8, and that the physician had no responsibility

to act to expedite the plaintiff’s appointments for diagnostic tests, id. at 110:22–

111:20 (“The national standard of care, in its basic tenet, is that if you find something

and you give the patient an order to get it and give the instructions of the phone

number and how to get it, then it becomes the patient’s responsibility to follow

through and get the test done.”). He did concede, however, that “there’s certainly an

obligation on a physician’s part to impart some need to expedite things.” Id. at

113:2–:3.

13. After her breast cancer diagnosis, the plaintiff had a series of imaging studies and scans,

including CT scans of her brain on March 24, 2011 and February 1, 2012, Pl.’s Ex. 15, 25; a

CT scan of her chest, abdomen, and pelvis on March 24, 2011, Pl.’s Ex. 16; PET/CT scans

on March 28, 2011, April 3, 2011, and September 17, 2012, Pl.’s Ex. 17, 19, 28; a whole

body bone scan on March 31, 2011, Pl.’s Ex. 18; MRIs of the pelvis on May 12, 2011, and

July 15, 2011, Pl.’s Ex. 21, 23; an MRI of both breasts on April 4, 2011, Pl.’s Ex. 20; an MRI

of the thoracic spine and lumbar spine on May 28, 2011, Pl.’s Ex. 22; a CT scan of the thorax

on July 18, 2011, Pl.’s Ex. 24; and a CT scan of her neck on February 1, 2012, Pl.’s Ex. 26.

44

14. Ms. Rhodes’s cancer treatment began on March 25, 2011, when she began receiving

hormone therapy with the drug Tamoxifen. Pl.’s Ex. 8, at 8098.

J. THE PROGRESSION OF THE PLAINTIFF’S BREAST CANCER

1. The parties agree that the plaintiff has both ductal carcinoma in situ and invasive ductal

carcinoma. 3rd FOF Table ¶ 339 (citing Trial Tr. ECF No. 55 at 17:5–:9). The plaintiff’s

expert, Dr. Tucker, testified that only invasive ductal carcinoma is used for staging because it

is the only type of breast cancer that invades into adjacent cells and the only part that is

potentially lethal. Trial Tr. ECF No. 55 at 18:24–:25. The natural tendency of breast cancer

when it becomes invasive is to migrate to lymph nodes and then to distant metastatic sites.

Id. at 20:24–21:1.

2. The parties also agree that staging of cancer is important to define the patient’s prognosis and

treatment options. Trial Tr. ECF No. 57 at 28:20–25. The staging convention used for breast

cancer in the United States is the American Joint Committee on Cancer (“AJCC”) Staging

Protocol. 3rd FOF Table ¶ 337 (citing Trial Tr. ECF No. 55 at 12:10–:12). Under that

protocol, there are four stages of breast cancer, with Stage I being the least severe and Stage

IV being the most severe. Trial Tr. ECF No. 55 at 12:13–:14. The size and extent of the

invasive component is what is relevant to staging. Id. at 19:21–:23. If invasive breast cancer

goes untreated, it will eventually evolve from Stage I to Stage IV. Id. at 20:20–:22. AJCC

stage is the single most important predictor of outcome. Id. at 21:24–:25.

3. The stage of a patient’s cancer is determined by three characteristics, called the “TNM

classification.” Trial Tr. ECF No. 55 at 12:15–:18; Trial Tr. ECF No. 57 at 28:9–:14. T

stands for the tumor size and extent within the breast; N stands for lymph node involvement;

and M stands for distant metastases, meaning the spread of the cancer into other areas, such

45

as bone, brain, lung, liver, etc. Trial Tr. ECF No. 55 at 12:17–:22. Stage I denotes a small

tumor size (T1 to T2), no lymph node involvement (N0), and no metastatic disease (M0). Id.

at 13:13–:18. Stage II denotes a bigger tumor size (T1, T2, or T3), possible early lymph

node metastasis, but confined to just a few lymph nodes (N1), and no evidence of metastatic

disease (M0). Id. at 13:19–:23. Stage III denotes any size tumor (T1, T2, T3, or T4), greater

nodal involvement, meaning more lymph nodes involved and bulkier lymph nodes, but no

metastatic disease (M0). Id. at 14:8–:12. When the cancer tumor has invaded the skin, the

cancer is defined as T4, which is at least Stage III. Trial Tr. ECF No. 57 at 39:4–:5. Finally,

Stage IV is defined by the presence of metastatic disease (M1). Trial Tr. ECF No. 55 at

14:13–:16. The experts also agreed that breast cancers have a relatively uniform growth rate.

Id. at 31:22–:23.

4. Both parties agree that when the plaintiff was diagnosed with breast cancer in March 2011,

she had advanced stage incurable breast cancer. 3rd FOF Table ¶ 333 (citing Trial Tr. ECF

No. 55 at 11:7–:9). They disagree, however, about how and when her cancer progressed

through the stages.

General Progression

5. The plaintiff’s expert, Dr. Tucker, opined that the plaintiff progressed from Stage I cancer by

first developing lymph node metastases, and then subsequently developing distant

metastases. Trial Tr. ECF No. 55 at 47:18–:22. That is a representative progression in

patients with invasive duct carcinoma and it is the progression seen in the great majority of

patients. Id. at 47:18–:23. According to Dr. Tucker, based upon this progression, the

plaintiff’s breast cancer was curable in December 2009, and progressed to advanced stage

incurable cancer before March 2011, id. at 11:6–:9 (Dr. Tucker’s testimony that “it is my

46

opinion that the breast cancer was curable in December of 2009, but by the time March 2011

had arrived, it was advanced stage, which meant that it was incurable at that point in time”).

6. The defendant’s expert, Dr. Feigert, testified that by December 2009, the plaintiff already

had Stage III or, more likely, Stage IV incurable breast cancer. Trial Tr. ECF No. 57 at

30:13–:18.

Stage of cancer in December 2009

7. Dr. Tucker testified that in his opinion, in December 2009, the plaintiff had Stage I cancer

with a T value of 1, an N value of 0, and an M value of 0. Trial Tr. ECF No. 55 at 32:5–:20,

44:15–:18, 45:11–:14.

a) To discern the T value, Dr. Tucker estimated the size of the plaintiff’s tumor in

December 2009. Since no imaging studies of the plaintiff’s breasts were done at that

time, he extrapolated from measurements of her tumor size that were taken in

December 2010 and March 2011. Trial Tr. ECF No. 55 at 33:18–34:12. The

December 2010 measurement (1.9 centimeters) was taken from the plaintiff’s

December 14, 2010 ultrasound, and the March 2011 measurements were taken from

the March 24, 2011 CT scan (2.8 centimeters) and a March 28, 2011 PET CT scan

(2.6 centimeters). 9 Id. Dr. Tucker considered each of these tests to be reliable tools

for measuring tumor size. Id. at 33:18–34:12. Dr. Tucker plotted the size of the

tumor at the times of the ultrasound, the CT scan, and the PET CT scan on a graph

with time on one axis and tumor size on the other. Id. at 34:13–:19. Then, because

cancer has a relatively constant growth rate – a characteristic that both parties

acknowledge, see 3rd FOF Table ¶ 353 –, he drew a straight line connecting the three

9

Dr. Tucker explained the .2 centimeter difference between the March 24, 2011 measurement and the March 28,

2011 measurement as a result of the fact that tumors are not spherical and just a slight rotation of the body can cause

small incremental changes in imaging size. Trial Tr. ECF No. 55 at 34:7–:12.

47

data points and extending on both ends. According to Dr. Tucker, the point on the

line that corresponded with December 2009 also corresponded to a tumor size of

approximately one half to one centimeter. Trial Tr. ECF No. 55 at 34:13–:21.

Because Dr. Tucker considered the tumor to be fast growing – a characterization

about which the defendant’s expert disagrees – he opined that the tumor was

nominally around one centimeter at its greatest dimension in December 2009 and well

under the two centimeter ceiling for the AJCC T1 category. Id. at 35:1–:6.

b) Dr. Tucker opined that in December 2009, the plaintiff’s cancer had an N value of 0

because: (1) he found no evidence of nodal metastatic disease in the records of the

plaintiff’s December 2009 appointment; and (2) the incidence of lymph node

metastasis in a patient with a one or two centimeter tumor is low. Trial Tr. ECF No.

55 at 44:17–45:10.

c) Dr. Tucker further opined that in December 2009, the plaintiff cancer had an M value

of 0 because: (1) if the plaintiff had metastatic disease in December 2009, she likely

would not be alive today; (2) the plaintiff had a high growth rate cancer; and (3) the

plaintiff would have developed symptoms of metastases, such as pain, dizziness,

headaches, seizure, or liver disease, in the fifteen-month period before her December

2009 appointment and when her cancer was finally diagnosed. Trial Tr. ECF No. 55

at 45:17–46:20.

8. The defendant’s expert, Dr. Feigert, opined that by December 2009, the plaintiff already had

Stage III or, more likely, Stage IV incurable breast cancer. Trial Tr. ECF No. 57 at 30:13–

:18. Dr. Feigert described the following grounds for his opinion: (1) the extent of the cancer

that was discovered sixteen months later on an MRI; (2) the slow to average growth rate of

48

the tumor, as evidenced by the tumor’s average mitotic rate and low Ki-67 value, and (3) the

favorable genetic profile of the cancer as hormonal receptor positive, HER2 negative. Dr.

Feigert testified that the plaintiff’s April 4, 2011 MRI report showed a tumor over ten

centimeters in size and “very extensive involvement of the plaintiff’s skin with cancer over a

very large portion of the breast.” Id. at 31:22–32:5, 34:2–:20, 37:8–:13, 38:9–:10. Dr.

Feigert testified that the radiologist’s report describes “generalized advanced thickening of

the skin” over the entire breast, which is visible on the MRI image. Id. at 34:12–:20. He

viewed as significant the radiologist’s notations in the report of “evidence of extensive

carcinoma of the breast is noted with skin invasion” and “immediately direct extension into

the skin is felt to be present superiorly.” Id. at 35:1:10, 36:23–37:7. Dr. Feigert testified that

since no imaging of the plaintiff’s breast from December 2009 exists, he had to work

backward from the imaging that was available. Id. at 37:19–38:6. Due to the extensive

nature of the skin involvement in April 2011, Dr. Feigert opined that it was “exceedingly

likely that there would have been at least one cancerous cell in the skin” in December 2009.

Id. at 38:6–:22. Dr. Feigert also pointed to (1) Dr. Hill-Daniel’s note in the plaintiff’s

progress note of October 18, 2010, identifying “multiple scars on left breast with some

overlying nodules”; (2) the note on the report from the plaintiff’s December 14, 2010

ultrasound, stating “sub centimeter nodules in the upper outer quadrant of the left breast

correspond to skin lesions,” as evidence of the extent of skin involvement. Id. at 40:7–41:20.

According to Dr. Feigert, since even a single cancer cell in the skin makes the patient a Stage

III-B, T4, the plaintiff likely had at least Stage III-B cancer in December 2009. Id. at 38:15–

:22 (“[A]ll you need is a single cancer cell in the skin, as of December of ’09 to make this

patient a Stage III-B, the T4, with skin invasion. That’s why I wanted to demonstrate on this

49

MRI how extensive it was in April of ’11 to make a rational argument that there would have

certainly been at least a microscopic and in my opinion macroscopic disease in the skin 16

months earlier.”). Dr. Feigert testified that the misdiagnosis of a Stage III or Stage IV cancer

as Stage I is “all too common.” Id. at 49:4–50:1 (“[I]n hindsight the explanation for why the

cancer comes back is there must have been metastases before the surgery.”).

9. The plaintiff’s expert, Dr. Pushkas, testified that in his opinion, the plaintiff had Stage I

breast cancer in December 2009. Trial Tr. ECF No. 56 at 67:22–68:2. He testified that T4

tumors are tumors that extend directly into the skin or chest wall and cause ulcerations and

nodules on the skin. Id. at 80:13–:14. He also testified that these ulcerations or nodules are

usually visible or, if not, there may be confounding skin abnormalities. Id. at 80:18–:23. Dr.

Pushkas testified that there was no indication in Dr. Hill-Daniel’s notes from the plaintiff’s

December 2009 or October 2010 visits, or in the notes from the plaintiff’s visits to Howard

University or Fort Washington Medical Center, that would suggest direct extension of the

cancer into the skin by ulceration or visible nodules on the skin. Id. at 81:3–:13. He further

testified that he saw no evidence in any of those medical records between December 2009

and the end of 2010 that would suggest T4 cancer. Id. at 81:14–82:9.

Progression of cancer after December 2009

10. The plaintiff’s expert, Dr. Tucker, testified that, in his opinion, the cancer progressed from

Stage I to Stage II, meaning the plaintiff developed lymph node metastases, sometime

between July and November 2010. Trial Tr. ECF No. 55 at 47:24–48:11. Dr. Tucker also

testified that the cancer progressed to Stage IV sometime between December 2010 and

February 2011. Dr. Tucker relied on the extent of the distant metastasis shown on the March

24, 2011, PET CT scan and a subsequent technetium 99 scan. Id. at 49:20–50:5. According

50

to Dr. Tucker, the metastatic disease was distributed among bony sites, but the sites were few

in number and there was no evidence of visceral involvement (brain, lungs, liver, or other

body sites). Id. at 50:10–:15. Metastases take time to develop, but how long this takes is a

function of the cancer’s growth rate. Id. at 50:16–23. Based on his opinion that the

plaintiff’s cancer has a high growth rate and the extent of the metastases in March 2011, Dr.

Tucker calculated that the plaintiff’s cancer would have metastasized distantly between July

and November 2010. Id. at 48:1–:3.

11. The plaintiff’s expert, Dr. Pushkas, opined that the plaintiff’s disease probably became Stage

II disease during the summer of 2010, probably in July or August. Trial Tr. ECF No. 56 at

74:23–:24. The grounds for his opinion were that no lymph nodes were felt in December of

2009, but they were easily palpable ten months later, in October 2010, and showed on the

later imaging studies, and that lymph node involvement is dependent on the size of the

primary tumor. Id. 74:20–75:16.

12. Dr. Bowers, the diagnostic radiologist who interpreted the plaintiff’s pelvis MRIs from May

12, 2011 and July 15, 2011, and who wrote the corresponding reports, testified that the May

12, 2011, MRI showed three early metastatic lesions. Trial Tr. ECF No. 56 at 53:16–:25.

These pelvis lesions were not present on the March 2011 CT scan nor was abnormal activity

in those areas reflected on the bone scan conducted on March 31, 2011. Id. at 54:5–:15.

Accordingly, he testified that he considered the metastatic lesions to be new as of May 2011.

Id. at 54:16–:18. On the report, he wrote that his impression was “several lesions . . . that are

suspicious for early bony metastatic disease.” Pl.’s Ex. 21.

13. The defendant’s expert, Dr. Feigert, agreed with the plaintiff’s experts that by March 31,

2011, the plaintiff’s cancer had metastasized into the bone, Trial Tr. ECF No. 57 at 65:4–:6,

51

65:12–:16, based on his opinion that her cancer was already at a Stage III-B or IV by

December 2009, id. at 67:18–68:12.

The growth rate of the plaintiff’s cancer

14. Both parties agree that the growth rate of a cancer will contribute to stage progression. Trial

Tr. ECF No. 55 at 24:6–:7. The parties’ experts disagreed, however, about the growth rate of

the plaintiff’s cancer. The plaintiff’s expert, Dr. Tucker, testified that the plaintiff’s cancer is

fast growing, id. at 46:9–:10, whereas the defendant’s expert, Dr. Feigert, testified that it has

an average to slow growth rate, Trial Tr. ECF No. 57 at 93:3–:6.

15. Dr. Tucker and Dr. Feigert agreed that breast cancer’s histopathological grade provides

useful prognostic information that helps with treatment decisions. Trial Tr. ECF No. 55 at

22:2; Trial Tr. ECF No. 57 at 46:23–:25, 48:4–:6. The grading of breast cancer is correlated

to the aggressiveness of the cancer. Trial Tr. ECF No. 57 at 46:23–:25, 48:4–:6. The grading

system endorsed by the AJCC is the Scarff Bloom Richardson System (also referred to as the

Nottingham grading scheme), which has three grades. Trial Tr. ECF No. 55 at 22:8–:13,

71:23–72:1. The grade of the cancer is determined by measuring three characteristics of the

cancer cells under a microscope: the tubules, the atypia, and the mitotic rate. Id. at 24:11–

25:5. The tubule component describes how well the cancer makes small ducts that give the

tumor its origin. Id. at 24:12–:14. The atypia component describes how typical the nucleus

of the cancer cell is. Id. at 24:14–:19. The mitotic rate component describes the number of

cells in the process of dividing. Id. at 24:19–:22. Each of these components is scored on a

scale of one to three, and the sum of the scores determines the grade. Id. at 24:22–25:5. A

total score of three, four, or five equals a grade one; a total score of six or seven equals a

52

grade two; and a total score of eight or nine equals a grade three. Id. at 25:6–:13. The higher

the grade, the more aggressive the tumor. Id. at 24:6–:9; Trial Tr. ECF No. 57 at 46:23–:25.

16. The treating pathologists at Providence Hospital graded the plaintiff’s tumor as a grade three,

or the most aggressive type of tumor. Trial Tr. ECF No. 57 at 78:19–:23. This grade was

calculated from a tubule score of 3, an atypia score of 3 and a mitotic rate score of 2. Def.’s

Ex. 8, at 3001; Pl.’s Ex. 3, at 3001.

17. The experts disagreed about the importance of the grade for describing the cancer’s growth

rate, the independent significance of each of the individual component scores, and the

importance of certain other indicators for predicting the growth rate of the cancer.

a) The plaintiff’s expert, Dr. Tucker, testified that the grade is the second most

important predictor of outcome with breast cancer and that the higher the grade of the

cancer, the faster the growth. Trial Tr. ECF No. 55 at 22:2, 23:24–24:5. According

to Dr. Tucker, because the plaintiff’s cancer is grade three, the plaintiff’s breast

cancer has a high growth rate. Id. at 32:2–:3. Dr. Tucker also testified that all three

characteristics (tubules, atypia, and mitotic rate) are necessary to determine the

growth rate of the cancer and no individual component of the grade is a significant

predictor of the cancer’s growth rate on its own. Id. at 25:14–:25. Dr. Tucker

testified that the level of Ki-67 – a “proliferation marker” that measures expression of

synthesizing DNA – cannot be used to predict tumor growth rate. Id. at 63:12–:22

(use of Ki-67 to measure the growth rate of a tumor is a “misuse of the marker.”).

b) The defendant’s expert, Dr. Feigert, testified that the grade of the cancer is a measure

of its aggressiveness, which is distinct from growth rate. Trial Tr. ECF No. 57 at

92:18–:21 (“[W]e often see aggression correlating with growth rate, but not always.

53

Aggression could be a slow growing cancer that is invading into the tissues. So as

medical oncologists we distinguish the two.”). According to Dr. Feigert, while the

plaintiff’s cancer is aggressive, it is not particularly fast growing. Id. at 46:22–48:8,

52:20–:22, 53:10–:12. Dr. Feigert also testified that the part of the grading system

that indicates the cancer’s growth rate is the mitotic rate because it reflects how fast

the cells are dividing. Id. at 46:22–47:14. The plaintiff’s mitotic rate was determined

by the physicians at Providence Hospital to be a two out of three. Id. at 79:11–:12.

According to Dr. Feigert, that level indicates that while the plaintiff’s tumor is

aggressive, its growth rate is average. Id. at 79:11–:13. Dr. Feigert also testified that

the level of Ki-67 is a predictor of tumor growth rate and that the plaintiff’s Ki-67

value indicates a slow-growing cancer. Id. at 75:15–:19, 77:14–:19, 79:11–:12. Dr.

Feigert acknowledged, however, that the Ki-67 level was developed to predict the

responsiveness of a cancer to particular treatment options. Id. at 76:4–:10. He further

acknowledged that the AJCC has rejected the incorporation of proliferation markers

such as Ki-67 into its staging system, and that the Ki-67 level does not seem to

reliably predict prognosis. Id. at 76:11–77:4. Dr. Feigert attempted to bolster his

description of the plaintiff’s cancer by noting that the genetic profile of her cancer,

Luminal A, suggests a relatively slow growth rate. Id. at 63:18–:24.

K. Breast cancer prognoses

1. The parties agree on the basic probabilities of survival at the various stages of breast cancer.

Dr. Pushkas testified that the SEER Survival Monograph on Breast Cancer (“SEER

database”) is a reliable and authoritative source for determining the probability of survival

from breast cancer in its various stages, Trial Tr. ECF No. 56 at 63:5–:19, which the

54

defendant does not dispute, 3rd FOF Table ¶ 390. The SEER database represents a

compilation of data from over 300,000 cases reported from all over the United States. Trial

Tr. ECF No. 56 at 62:17–:21, 63:13–:19. According to the SEER Survival Monograph, the

average overall survival for Stage I breast cancer is ninety-eight percent, id. at 77:14–:16; the

average ten-year survival for Stage II breast cancer is in the low- to mid-seventy percent

range, id. at 78:7–:13, and the five-year survival for Stage IV breast cancer is fiteen percent,

id. at 83:5–84:1.

2. The plaintiff’s expert, Dr. Pushkas, testified that in his opinion, given what he knows about

the plaintiff and the nature of her cancer, the plaintiff would have had a ninety-eight percent

survival rate when her cancer was Stage I, Trial Tr. ECF No. 56 at 77:22–78:6, and a seventy

percent ten-year survival when her cancer was Stage II, id. at 78:14–:23. If the plaintiff’s

breast cancer had been diagnosed at Stage I or Stage II, there is a substantial probability that

her cancer would have been cured. Id. at 79:5–:13.

3. The plaintiff’s expert, Dr. Tucker, testified that the cure rate for Stage I breast cancer is

eighty to eighty-five percent over five years, and for Stage II breast cancer is over fifty

percent, Trial Tr. ECF No. 55 at 49:11–:13. The defendant’s expert, Dr. Feigert, testified that

the chance of survival for a patient with Stage III-B or Stage IV breast cancer is less than

fifty percent. Trial Tr. ECF No. 57 at 61:24–:25.

L. The plaintiff’s medical treatment

1. Dr. Yoo, the plaintiff’s oncologist since January 30, 2012, Trial Tr. ECF No. 56 at 20:20–:21,

testified that since her diagnosis, the plaintiff has undergone hormone treatment,

chemotherapy, mastectomy, and radiation therapy, and has been medically induced into

menopause. Pl.’s Ex. 8, at 8113–14. Her treatment began with hormone therapy, using a

55

drug called Tamoxifen, from March 25, 2011 to April 12, 2011, followed by neoadjuvant

chemotherapy until July 2011. Pl.’s Ex. 8 at 8098. A CAT scan taken at that time showed

that the mass in the plaintiff’s breast mass had significantly decreased with the

chemotherapy. Id. The plaintiff underwent a mastectomy of her left breast at Providence

Hospital on September 13, 2011. Id. The plaintiff’s treatments have been modified

numerous times since then based on the changing nature of her reactions and the cancer’s

reactions to them. Trial Tr. ECF No. 56 at 27:24–34:9. Since the plaintiff’s cancer is

incurable, her treatment has been palliative and directed to pain management. Id. at 28:20–

:25, 34:13–:20. At some time in the future, no more treatments will be available to the

plaintiff. Id. at 34:10–:16.

2. The plaintiff’s expert, Dr. Pushkas, opined that if the plaintiff’s breast cancer had been

diagnosed sometime between December 2009 and mid-February 2010, her course of

treatment would have been different. Trial Tr. ECF No. 56 at 71:22–72:12. In his opinion,

an imaging study would have showed an abnormal finding. Id. at 72:5. The physician then

would have ordered a biopsy for tissue confirmation. Id. at 72:5–:9. Once the biopsy

revealed cancer, she would have been evaluated for the metastatic disease spread elsewhere

in the body, which in Dr. Pushkas’s opinion would not have been found. Id. at 72:10–:13.

Next, the plaintiff would have undergone a mastectomy to remove the breast and the lymph

nodes in the armpit. Id. at 72:12–:20. In light of his opinion that the cancer would not have

spread to the lymph nodes by that time, the plaintiff would have been treated either with

hormone treatment alone – because her cancer has been shown to be hormone dependent for

its growth – or chemotherapy. Id. at 72:21–73:12. Due to the plaintiff’s young age at the

time, Dr. Pushkas would have recommended a twenty-four week course of chemotherapy

56

instead of hormone treatment. Id. at 73:2–12. He opined that this course of treatment would

have cured the plaintiff of cancer, with only repeated examinations as the necessary follow-

up. Id. at 73:11–:12.

3. Dr. Pushkas also testified that if the plaintiff’s breast cancer had been diagnosed at or around

when she was Stage II, the treatment protocol would have been largely the same as the

treatment he recommended at Stage I. Trial Tr. ECF No. 56 at 76:4–:10. The only

difference, in his opinion, is that if the plaintiff had ten or more involved lymph nodes in the

armpit, a radiotherapist would have recommended radiation treatment after the mastectomy.

Id. at 76:9–:15. In Dr. Pushkas’s opinion, however, the plaintiff would not have had more

than ten involved lymph nodes in the armpit. Id. at 76:18–:5, 77:24–78:5.

4. The opinions of the pathology and oncology expert witnesses, as well as the plaintiff’s

treating oncologist, regarding the stage of, prognosis of, and recommended treatment for, the

plaintiff’s breast cancer at the times of the alleged acts of negligence by Dr. Hill-Daniel and

Unity are summarized by the Court in the following chart:

57

Time of Corresponding Event Witness Cancer Prognosis Recommended

Diagnosis Stage Course of

Treatment

December The plaintiff visits Dr. Dr. Tucker Stage I 80-85% cure

2009–April Hill-Daniel three times: (Plaintiff’s rate over five

expert) years

2010 -December 3, 2009, for her Dr. Pushkas Stage I 98% survival. Imaging study,

first breast complaints, (Plaintiff’s Substantial biopsy,

expert) probability of mastectomy, 24-

-January 8, 2010, for cure. weeks of

fertility problems, and chemotherapy

Dr. Feigert Stage III -B Less than

-April 30, 2010, for a (Defendant’s (invasion of 50% survival.

check-up and eye expert) the skin) to

problems. Stage IV

August– August 10, 2010: The Dr. Tucker Stage I to Stage I: 80-

November plaintiff calls to schedule Stage II 85% cure rate

an appointment with Dr. over five

2010 Hill-Daniel for a years;

mammogram referral after Stage II:

her visit to Fort Over 50%

Washington Emergency cure rate.

Room. Her appointment is Dr. Pushkas Stage II 70% ten-year Imaging study,

rescheduled by Unity survival rate. biopsy,

twice. Substantial mastectomy, 24-

probability of weeks of

October 18, 2010: The cure. chemotherapy

plaintiff visits Dr. Hill- Dr. Feigert Stage III-B Less than

Daniel, who feels a mass in to Stage IV 50% survival.

the plaintiff’s left breast

and enlarged lymph nodes,

and refers her for

ultrasound.

December– December 14, 2010: Dr. Tucker Stage IV Incurable

March Breast Ultrasound

Dr. Pushkas Stage IV 15% five-

performed.

2011 year survival

rate.

February 9, 2011:

Incurable.

Mammogram performed.

Dr. Feigert Stage IV Incurable

March 8, 2011: Biopsy Dr. Yoo Stage IV Incurable Hormone

performed. (Plaintiff’s treatment,

treating chemotherapy,

oncologist) mastectomy,

radiation therapy,

induced

menopause, other

palliative

treatments, hospice

care

58

M. The Plaintiff’s Economic Damages

1. Through expert witnesses, both parties presented an estimate of the economic damages the

plaintiff incurred as a result of the delayed diagnosis of her breast cancer. Pl.’s Exs. 31, 53,

54; Def.’s Exs. 36, 37. Both parties’ economic expert witnesses analyzed the economic

losses the plaintiff would be expected to incur from loss of wages, loss of household services,

and the cost of future care. See id.

a) The plaintiff’s expert, Dr. Lurito, assumed the plaintiff would work until retirement at

age sixty-five, based on the information he had been given regarding the plaintiff’s

intentions. Trial Tr. ECF No. 71 at 13:13–:16. He conservatively assumed that the

plaintiff’s wages would be static, increasing only to keep pace with inflation,

throughout that entire period. Id. at 14:9–:14. Dr. Lurito applied a 3.5 percent after-

tax discount rate to his estimates of the plaintiff’s lost future wages. Id. at 17:19–:21.

The discount rate Dr. Lurito used took into account the amount of interest the plaintiff

could earn on the lump sum of wages provided so as not to overcompensate the

plaintiff. Id. at 16:16–22; 17:5–:7. Dr. Lurito did not deduct any personal

maintenance or consumption costs from his estimate because the plaintiff is still alive.

Id. at 19:18–:24. Based on these calculations, Dr. Lurito opined the plaintiff’s lost

wages amount to $737,715. Id. at 15:21–:23.

b) The defendant’s expert, Dr. Hurdle, agreed with one of the plaintiff’s expert’s

assumptions, namely, that the plaintiff’s wages would remain static, adjusted for

inflation, over her lifetime. Def.’s Ex. 36 at 15:3–8. She differed in three other

assumptions, however. First, Dr. Hurdle assumed a shorter length of the plaintiff’s

work life expectancy and estimated this period to be twenty-seven more years, in

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reliance on statistical work life tables that measure the average working life of a

woman with the plaintiff’s age and education background. Def.’s Ex. 36, at 29:2–:3.

Second, Dr. Hurdle differed from the plaintiff’s expert in the after-tax discount rate,

for which Dr. Hurdle used 8.98 percent. Id. at 21:15–16. That rate, according to Dr.

Hurdle, took into account the “riskiness of the future earnings that the plaintiff would

have but-for this injury.” Id. at 18:16–:19. She based this discount rate on the rate

for which one could obtain a two-year, unsecured loan or the rate a credit card

company would charge. See id. at 20:5–:24. Finally, unlike the plaintiff’s economic

expert, Dr. Hurdle deducted consumption, or the percent of the plaintiff’s income she

would be expected to spend on herself, from the amount of future wages she

estimated. Id. at 15:9–:14. Based on these calculations, Dr. Hurdle determined the

plaintiff’s lost wages amount to between $116,176 and $139,740. Id. at 23:5–:9.

2. Both experts agreed that the plaintiff’s economic damages would include the loss of

household services, which refers to the services the plaintiff would have been able to provide

to her children had the injury not occurred. Trial Tr. ECF No. 71 at 20:5–:13; Def.’s Ex. 36

at 25:20–:25, 26:1–:2. The plaintiff’s expert calculated this loss by determining the cost of a

live-in nanny for the plaintiff’s two children until the youngest child turned eighteen or

twenty-one and subtracted the value of the services the plaintiff will be able to provide for

approximately the next two years. Trial Tr. ECF No. 71 at 20:25, 21:1–:4; 21:22–:25. Using

this methodology, Dr. Lurito opined the plaintiff would suffer economic losses of between

$508,122 and $652,939. 10 Dr. Lurito applied a 3.5 percent discount rate to his calculations.

10

The lower end of the range is the number calculated until the plaintiff’s youngest child reaches age eighteen while

the higher end of the range is calculated until the plaintiff’s youngest child reaches age twenty-one. Tr. ECF No. 71

at 21:7–:18.

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Id. at 23:4–:7. The defendant’s expert, Dr. Hurdle, calculated loss of household services in

two ways: the wages for a live-in nanny and the statistical value of the plaintiff’s time

according to economic statistics tables. Def.’s Ex. 36 at 23:18–:25; 24:17–:24. The

defendant calculated the value of the plaintiff’s household services based on the plaintiff’s

youngest child needing services until age eighteen or twenty-one. Id. at 23:23–:24. Dr.

Hurdle applied an 8.98 percent discount rate to these calculations, assuming the need to

compensate for the risk that the plaintiff may not have been able to perform these services

even without the injury and whether the plaintiff’s “children would need that care.” Id. at

24:8–:12. Using the live-in nanny method of calculation, Dr. Hurdle opined the plaintiff

stood to lose $367,062. Id. at 27:15. Using the statistical table method, Dr. Hurdle opined

the plaintiff would suffer between $166,521 and $191,239 in losses. Id. at 27:6–:7.

3. To determine the cost of the plaintiff’s future medical care, both economists relied upon the

report submitted by Nurse Patterson, the plaintiff’s expert. 11 Trial Tr. ECF No. 71 at 24:5–

:9; Def.’s Ex. 36 at 30:11–:17. Nurse Patterson stated the plaintiff would require

approximately 1.5 years of future care, see Trial Tr. ECF No. 56 at 94:13–:17, and in her

report, Nurse Patterson identified four areas of future care costs: psychological counseling,

hospice care, medical care, and nursing services. Pl.’s Ex. 53. Dr. Lurito, the plaintiff’s

expert, estimated the future medical care costs the plaintiff is likely to incur are between

$146,682 and $149,886 based on the potential escalation of costs over the next 1.5 years and

applying a 3.5 percent discount rate. Trial Tr. ECF No. 71 at 25:21–:25; 26:1; 26:6–11. The

defendant’s expert, Dr. Hurdle, adjusted Nurse Patterson’s estimates to provide a range of

estimated costs for obtaining counseling and in-home nursing services, with a low range

11

Nurse Patterson’s calculations include the recommendations of the plaintiff’s social worker, Mila Tecala. Tr. ECF

No. 56 at 94:20–:22.

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determined by using District of Columbia wage rates, and, for the upper range, using the

actual costs to a client for such counseling. Def.’s Ex. 36 at 31:3–:11; 35:2–:23. For in-

patient hospice care, Dr. Hurdle opined the plaintiff could move into a nursing home and use

out-patient hospice care (being brought into the nursing home) instead of moving into a

hospice. Id. at 36:5–:20. Overall, Dr. Hurdle estimated the lower bound for future care

costs, including in-patient hospice care, to be $90,434 and the upper bound to be $111,889.

Id. at 37:12–:13.

N. The Plaintiff’s Non-Economic Damages

1. The plaintiff is seeking non-economic damages in the amount of $6 million in addition to

economic damages. Compl. at 8, ECF No. 1. To describe the plaintiff’s non-economic

damages for pain and suffering, the plaintiff provided, in addition to her own testimony, the

testimony of her treating oncologist and the licensed social worker who evaluated her mental

health.

2. The plaintiff’s oncologist, Dr. Yoo, testified the plaintiff was “very saddened” when he

informed her that her cancer was incurable. Trial Tr. ECF No. 56 at 23:16. With respect to

her physical condition, he testified the plaintiff was complaining continuously of bone pain

as of February 14, 2012. Trial Id. at 24:7–:8. As Dr. Yoo continued to treat the plaintiff, he

testified, she complained of worsening bone pain, particularly in the “low back, hip and

multiple joints.” Id. at 28:4–:10. At times, the plaintiff was taking narcotic pain relievers to

alleviate her bone pain. Id. at 33:17–:18. Dr. Yoo testified that he didn’t “recollect there was

a significant pain free, truly pain-free period” between the time he began treating her in

January 2012 and the time of trial. Id. at 33:25–34:5. The treatments rendered the plaintiff

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temporarily post-menopausal, id. at 30:6–:10, and caused her to be bloated and gain weight.

Id. at 31:22–:23.

3. Ms. Tecala, who evaluated the plaintiff’s mental health in 2012 and again in 2013, Trial Tr.

ECF No. 70 at 94:13–16, testified that the plaintiff was diagnosed with depression in 2012.

Id. at 95:23. Ms. Tecala testified the plaintiff told her “she only could sleep maybe four or

five hours a night” and “stays in bed or stays on the couch and watches TV because she [is]

too tired or too much in pain to do anything” other than take her children to school and pick

them up from school. Id. at 97:2–:9. Ms. Tecala noted the plaintiff “had the saddest

demeanor” and “spoke almost in a whisper, as if talking took so much effort.” Id. at 97:13–

:16. In testifying about the difference in evaluations between 2012 and 2013, Ms. Tecala

opined that the plaintiff was more depressed in 2013, id. at 99:18–:21, and Ms. Tecala

testified the plaintiff is suffering from the loss of health, body parts, and “body experiences

like pain and suffering.” Trial Tr. ECF No. 56 at 9:18–:23. She also testified the plaintiff is

experiencing anticipatory grieving for her impending death. Id. at 10:5–:15. The plaintiff,

Ms. Tecala testified, is “very concerned about her children . . . and what would happen to

them when she dies.” Id. at 12:12–:15. The plaintiff does not “have the energy or the

wherewithal to [play with her children] because she is in pain.” Id. at 14:7–:8.

4. The plaintiff testified that she had to quit her job because of “the pains that I had been having

in my body, which was, I couldn’t stand for a long period of time.” Trial Tr. ECF No. 55 at

103:14–:16. She testified she is unable to pursue her goal of exploring the world because of

her doctor appointments. Id. at 104:24–105:6. In addition, the chemotherapy has reduced

the plaintiff’s strength and energy levels. Id. at 105:12–:18. She has lost all of her hair. Id.

at 105:22. The plaintiff testified she no longer wants to be around people and spends most of

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her days in bed. Id. at 106:1–:7. She feels guilty she will not “be here for long for my kids

to give them the things that they need.” Id. at 107:6–:9.

III. CONCLUSIONS OF LAW

In reaching the conclusions of law, the Court evaluates the evidence to determine whether

the plaintiff has established each element of the negligence claim against the defendant by a

preponderance of the evidence. See District of Columbia v. Price, 759 A.2d 181, 183 (D.C.

2000) (“In order to show negligence, a plaintiff must establish, by a preponderance of the

evidence, the applicable standard of care, a breach of that standard by the defendant, and a causal

relationship between the breach and the plaintiff’s injury.”) (citing District of Columbia v.

Wilson, 721 A.2d 591, 597 (D.C. 1998)); Clark v. Feder Semo & Bard, P.C., 895 F. Supp. 2d 7,

29 (D.D.C. 2012) (D.D.C. Aug. 15, 2012) (“The Court reviews the evidence under the ‘default

rule for civil cases,’ the ‘preponderance of the evidence’ standard.”) (citing CIGNA Corp. v.

Amara, 131 S. Ct. 1866, 1881 (2011)); see also Ascom Hasler Mailing Systems, Inc. v. United

States Postal Service, 885 F. Supp. 2d 156, 181 (D.D.C. 2012). 12 The Court first reviews the

applicable legal standards for negligence claims for medical malpractice under the FTCA, and

then assesses whether the plaintiff has proven, by a preponderance of the evidence, each of the

elements for her negligence claim against the defendant.

A. THE APPLICABLE LEGAL STANDARDS

1. The Federal Tort Claims Act

The United States, as a sovereign, is absolutely immune from suit and, unless Congress

has unequivocally consented to permit a cause of action, no court has jurisdiction to entertain a

claim against the United States. United States v. Sherwood, 312 U.S. 584, 586-87 (1941); United

12

The defendant would bear the same burden of proof to establish any affirmative defense of contributory

negligence, but, in this case, as discussed above, the Court precluded the defendant from belatedly asserting this

defense. See Minute Order (June 18, 2013).

64

States v. Testan, 424 U.S. 392, 399 (1976). Congress created a limited waiver of sovereign

immunity of the United States by enacting the FTCA, the provisions of which must be strictly

construed in favor of the United States. See Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 261

(1999); United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Kubrick, 444 U.S.

111, 117-18 (1979); Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir.

2003).

The FTCA creates liability for certain torts committed by agencies of the United States or

their employees “in the same manner and to the same extent as a private individual under like

circumstances . . . .” 28 U.S.C. § 2674; see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214,

217-18 (2008) (“In the FTCA, Congress waived the United States’ sovereign immunity for

claims arising out of torts committed by federal employees.”). The Supreme Court has explained

that “the effect of the Tort Claims Act is to waive immunity from recognized causes of action,

not to visit the Government with novel and unprecedented liabilities.” United States v. Brown,

348 U.S. 110, 112-13 (1954) (internal quotation marks and citation omitted). Moreover, the

liability of the United States for the negligent or wrongful acts or omissions of its employees,

acting within the scope of their employment, is determined “in accordance with the law of the

place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). The Supreme Court has

“consistently held that § 1346(b)’s reference to the ‘law of the place’ means law of the State –

the source of substantive liability under the FTCA.” FDIC v. Meyer, 510 U.S. 471, 478 (1994)

(collecting cases); Molzof v. United States, 502 U.S. 301, 305 (1992) (in medical malpractice

cases “the extent of the United States’ liability under the FTCA is generally determined by

reference to state law”). Hence, the FTCA incorporates state law, including the elements of an

alleged tort as defined by state tort law. Tri-State Hosp. Supply Corp., 341 F.3d at 576. Since

65

the alleged acts and omissions giving rise to the plaintiff’s negligence claim against the

government occurred in the District of Columbia, the parties do not dispute that the law of the

District of Columbia applies. See Pl.’s Corrected Proposed Concls. of Law (“Pl.’s Concls.”) at 2;

Def.’s Proposed Concls. of Law (“Def.’s Concls.”) at 2. Thus, the liability of the United States

is measured against the standards for medical malpractice in the District of Columbia.

2. Negligence Standard for Medical Malpractice

Under District of Columbia law, the plaintiff in a medical malpractice action must

demonstrate by a preponderance of the evidence three elements: (1) the applicable standard of

care; (2) the fact that the defendant, through his or her actions or inactions, deviated from that

standard of care; (3) and that a causal relationship exists between the defendant’s deviation and

the plaintiff’s injuries. Flores-Hernandez v. United States, 910 F. Supp. 2d 64, 72, *17-18

(D.D.C. Dec. 18, 2012) (enumerating tripartite burden in medical malpractice actions) (citing

Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C. 1990)); Ornoff v. Kuhn & Kogan,

Chartered, 549 A.2d 728, 731 (D.C. 1998); Psychiatric Inst. of Wash. v. Allen, 509 A. 2d 619,

623-24 (D.C. 1986)); see also Burton v. United States, 668 F. Supp. 2d 86, 98 (D.D.C. 2009);

Appleton v. United States, 180 F. Supp. 2d 177, 182 (D.D.C. 2002) (in FTCA negligence suit, the

plaintiff “bears the burden of proof, by a preponderance of the evidence, to demonstrate the

applicable standard of care, deviation from that standard, and the causal relationship between the

deviation and plaintiff’s injury”) (citing Messina v. District of Columbia, 663 A.2d 535, 537-38

(D.C. 1995)); Giordano v. Sherwood, 968 A.2d 494, 498 (D.C. 2009); Nwaneri v. Sandidge, 931

A.2d 466, 470 (D.C. 2007).

Each of these elements usually must be proven by expert testimony. Porter v. McHugh,

850 F. Supp. 2d 264, 267 (D.D.C. 2012) (citing Cleary v. Group Health Ass’n, 691 A.2d 148,

66

153 (D.C. 1997) (“Generally, in a medical malpractice negligence action, the plaintiff must

present medical expert testimony to establish the standard of care, expert testimony that the

defendant’s conduct deviated from that standard of care, and expert testimony establishing that

the alleged deviation proximately caused the plaintiff’s injuries”)); see also Woldeamanuel v.

Georgetown Univ. Hosp., 703 A.2d 1243, 1245 (D.C. 1997). “While absolute certainty is not

required, opinion evidence that is conjectural or speculative is not permitted.” Sponaugle v. Pre-

Term, Inc., 411 A.2d 366, 367 (D.C. 1980). Indeed, the requirement of expert testimony is

designed to mitigate the risk that findings might be “based on mere conjecture or speculation[,]”

or incorrect assumptions. Giordano, 968 A.2d at 498. Where the experts disagree, the task of

the finder of fact is to evaluate the sufficiency of the foundation for each proffered opinion, as

measured against the factual evidence and the applicable medical or scientific principle. See id.;

Nwaneri, 931 A.2d at 470; Washington, 579 A.2d at 181; Haidak v. Corso, 841 A.2d 316, 327

(D.C. 2004) (“Expert testimony may be excluded when the expert is unable to show a reliable

basis for [his] theory.”). As discussed below, the plaintiff has carried her burden on each of

these elements.

B. THE DEFENDANT WAS NEGLIGENT IN FAILING TIMELY TO

DIAGNOSE THE PLAINTIFF’S BREAST CANCER.

The parties agree that the applicable standard of care is a national standard, “not just a

local custom.” Nwaneri, 931 A.2d at 470 (quoting Travers v. District of Columbia, 672 A.2d

566, 568 (D.C. 1996)); Flores-Hernandez, 910 F. Supp. 2d at 72. Generally, the applicable

standard of care for all health care professionals and facilities is the “course of action that a

reasonably prudent doctor with the defendant’s specialty would have taken under the same or

similar circumstances.” Strickland v. Pinder, 899 A.2d 770, 773 (D.C. 2006) (quoting Meek v.

Shepard, 484 A.2d 579, 581 (D.C. 1984)); Morrison v. MacNamara, 407 A.2d 555, 561 (D.C.

67

1979) (stating that the standard is “that degree of reasonable care and skill expected of members

of the medical profession under the same or similar circumstances”). Since Dr. Hill-Daniel is a

family practice doctor, the parties agree that the applicable standard is the national standard of

care for a reasonably prudent family practice doctor. The plaintiff alleges that Dr. Hill-Daniel

breached that standard at multiple points during her treatment of the plaintiff. The Court agrees,

and addresses each alleged breach below.

1. December 2009–April 2010

Based on the factual circumstances in this case and the testimony of the expert witnesses,

the Court finds that Dr. Hill-Daniel’s conclusions and the corresponding treatment plan that she

prescribed during the plaintiff’s December 3, 2009 visit were not within the national standard of

care for a family practice doctor.

Both of the plaintiff’s experts testified that Dr. Hill-Daniel first breached the national

standard of care by failing to consider breast cancer as part of her “differential diagnosis,” which

is the list of possible diagnoses for a particular set of symptoms. Dr. Sutherland testified that

breast cancer “absolutely” had to be included on the differential diagnosis of the plaintiff’s breast

complaints at the December 9, 2009 visit. Trial Tr. ECF No. 69 at 39:25–40:8. Dr. Margo

expressed the same opinion. Trial Tr. ECF No. 70. at 64:6–:8. Notably, Dr. Margo’s opinion

was premised entirely on the words written on the progress note for the plaintiff’s December 3,

2009, visit: that the plaintiff came in because of “pain and tenderness in her breasts,” that she

complained of “tenderness and lumpiness,” that there was no change in this pain or lumpiness

with her menstrual cycle, and that upon examination, Dr. Hill-Daniel found no masses, no

retractions, and no visible lymph nodes. See id. at 54:12–58:22. Dr. Margo emphasized the

significance of the notation that the symptoms did not change with the plaintiff’s menstrual

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cycle. According to Dr. Margo, women tend to get cysts in their breasts that go away after their

period, so the fact that the plaintiff’s lumpiness did not change with her menstrual cycle made

that diagnosis less likely. Id. at 55:20–:23. Dr. Sutherland also focused primarily on the

undisputedly non-cyclic nature of the plaintiff’s complaints. Trial Tr. ECF No. 69 at 39:20–24

(“So the differential diagnosis in noncyclical breast pain would include potentially chest wall

tenderness, breast cancer. But the differential diagnosis had to be developed that would consider

all the different possibilities.”).

Relying primarily on the plaintiff’s young age and on what they perceived as the bilateral

nature of her complaints, i.e., meaning that they pertained to both breasts, defendant’s experts

Dr. Bethea and Dr. Koch testified that the national standard of care did not require Dr. Hill-

Daniel to consider breast cancer as part of her differential diagnosis. Trial Tr. ECF No. 73 at

32:8–:12 (Dr. Bethea’s testimony that for a “[t]wenty-four year-old with bilateral benign

fibrocystic findings, it would be inappropriate to list cancer as a very real concern simply

because it would not be a very real concern. It would be a very rare occurrence.”); id. at 89:8–

:15 (Dr. Koch’s testimony that Dr. Hill-Daniel’s assessment was “perfectly reasonable” for a

“twenty-four-year-old woman complaining of bilateral breast pain and lumpiness in her

breasts.”).

The Court finds, in addition, that the plaintiff’s experts succeeded in showing that young

age is not a credible reason for declining to list breast cancer on a differential diagnosis for a

woman presenting with the plaintiff’s complaints of feeling a “knot” in her breast and

noncyclical pain, in the context of a medical history of both grandmothers’ having breast cancer.

Dr. Sutherland testified that “many breast cancers that are diagnosed in this country today come

from the findings of the patient’s own self breast examination, and that’s particularly true in the

69

younger individuals when routine screening isn’t necessarily done.” Trial Tr. ECF No. 69 at

38:7–:12. Dr. Margo added that “young women often aren’t that sensitized to their body, so a

young woman coming in complaining of breast lumps, which is not a common complaint of

young women, I would pay more attention to it.” Trial Tr. ECF No. 70 at 78:25–79:4.

Moreover, Dr. Margo testified that even though the incidence of breast cancer is rare in women

of the plaintiff’s age, “young women tend to have very aggressive breast cancers,” so it is

particularly important to diagnose a young woman’s breast cancer early. Id. at 78:19–:22. In her

expert opinion, breast cancer had to be on the differential diagnosis because “it was the most

dangerous thing to miss.” Id. at 64:6–:8; see also id. 65:16–:18 (Dr, Margo’s testimony that “if

it’s something that would be really terrible if you missed it, then you need to make sure you’re

right” that the cause of the concerns is not that thing).

The defendants’ experts’ reliance on the bilateral nature of the plaintiff’s complaints also

diminishes the credibility of their opinions. See Haidak v. Corso, 841 A.2d 316, 327 (D.C.

2004) (“Expert testimony may be excluded when the expert is unable to show a reliable basis for

[his] theory.”). The plaintiff testified that she told Dr. Hill-Daniel during the December 3, 2009

visit that she had a pain and a knot in her left breast. Trial Tr. ECF No. 55 at 78:13–:14 (“I told

her that I had soreness and tenderness in both of my breasts, and a pain and a knot in my left

breast.”). Dr. Hill-Daniel testified that the plaintiff did not specify that the knot was in one

particular breast, Trial Tr. ECF No. 58 at 4:7–:12 (“As noted in the chart, [the plaintiff] came in

with a new complaint of breast tenderness and lumpiness. She stated that her breasts were tender

all the time. When I asked her in more detail about that, she actually held under her breasts and

basically just motioned that both breasts were tender and felt lumpy.”); id. at 18:18–:23 (Upon

questioning by the Court about whether Dr. Hill-Daniel asked the plaintiff about her use of the

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term “knot,” Dr. Hill-Daniel responded, “So, during the course of our exam, I asked her, you

know, is there a particular place, you know, where do you feel the knot? And she couldn’t give

me any specific place. And when I asked her, she just, again, said, they’re all over. So basically

saying that both breasts felt sore and knots in them [sic], not one specific knot.”). Yet, the

plaintiff’s recollection that she complained of finding a knot in her left breast is wholly

consistent with the description of symptoms that she undisputedly gave to medical providers at

Howard University Hospital and Fort Washington Hospital in the following months, see Pl.’s Ex.

104, at 23061 (Howard University Hospital medical record from May 19, 2010 describing chief

complaint as “knots on left breast”); Pl.’s Ex. 6, at 6003 (Fort Washington medical record from

August 9, 2010 describing patient’s complaint as “knot on LT breast”). The parties also agree

that the notation on the Unity progress note for the December 3, 2009, visit is ambiguous as to

whether the complaint of lumpiness pertained to one breast or both breasts. Pl.’s Ex. 1, at 1013;

Def.’s Ex. 1, at 8 (“Pt also concerned that breast [singular] are [plural] lumpy.”). When

questioned about the significance of this notation, Dr. Hill-Daniel became particularly defensive.

Trial Tr. ECF No. 58 at 59:18–:25 (“Q: And how did you spell breast? Just spell it out for us the

way you wrote it in your note. A: B.R.E.S.T. [sic] Q: Okay. And that would indicate singular?

A: The verb used after that is plural, [are]. So that breast is a typo. Q: Or the word [are] is a

typo? A: It’s more common to leave off an S than to change a verb.”). In light of all of these

factors, the Court is inclined to believe the plaintiff’s testimony that she specifically complained

to the healthcare providers at Unity about a knot in her left breast, in addition to complaining that

she felt tenderness and lumpiness in her breasts generally.

Dr. Sutherland also testified that the plaintiff’s family history of breast cancer increased

the importance of including breast cancer on the differential diagnosis because the fact that her

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two grandmothers were both diagnosed with breast cancer increased her risk. Trial Tr. ECF No.

69 at 40:4–:8 (“And one of the other reasons, you know, for that is she was at higher risk also

because of the family history. She had two grandmothers that had family – or have a history of

breast cancer, which increases her risk.”). He testified that an article about screening guidelines

for breast cancer, as part of the Guam breast and cervical cancer early detection program,

supports that opinion, Trial Tr. ECF No. 55 at 4:6–:9, and, indeed, the article states that one or

more first-or second-degree relatives with breast cancer at an early age (less than 40-50 years of

age) can be a red flag suggestive of genetic susceptibility to breast cancer. Pl.’s Ex. 67, at 4.

Whether the plaintiff informed Dr. Hill-Daniel about her family history of breast cancer

is another disputed matter. The plaintiff testified that she told both Dr. Hill-Daniel and the

medical assistant at Unity that her two grandmothers had been diagnosed with breast cancer.

Trial Tr. ECF No. 55 at 79:16 (responding to counsel’s question “would you describe for us . . .

the nature of the discussion [that she had with Dr. Hill-Daniel about cancer],” the plaintiff said,

“I told her I had two grandmothers that had breast cancer,”); id. at 128:17–:18, 129:5–:6

(testifying that she “told them at Unity” that she had a family history of breast cancer and that

she “told them numerous times when I was, when I seen the nurse before I seen Dr. Hill-

Daniel”). Dr. Hill-Daniel’s denial that the plaintiff mentioned her grandmothers’ breast cancer is

not inconsistent with the plaintiff’s testimony that she disclosed this critical family medical

history to the medical assistant. Doctors and medical assistants at Unity generally communicate

only through written notes in the medical record, and any information obtained by the medical

assistant at the short initial interview with a patient about the reason for the visit that is not

documented by the assistant may never reach the treating physician. At the same time, a patient

who has unburdened herself in an initial interview with a medical professional by describing

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pertinent symptoms, history or concerns may rightly believe that the key information will be

handled appropriately and passed along as needed without the need for repetition.

In this case, the medical assistant’s notes concerning the December 9, 2009 visit do not

relay any of the deep concern that the plaintiff described herself as having, in large part due to

her grandmothers’ history of breast cancer. Trial Tr. ECF No. 55 at 80:4–:12. Rather, this note

consists of abbreviated descriptions of the plaintiff’s concerns documented in three bullet points.

Pl.’s Ex. 1, at 1013; Def.’s Ex. 1, at 8. Important medical history information that the plaintiff

t

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