A B.C. woman who underwent an unnecessary mastectomy of her right breast has had her $400,000 jury award for damages reduced to $250,000 by three judges because the injuries were not "truly devastating."
Elena Ivanova underwent a right mastectomy in 2016 only to be told that her breast did not have cancerous tissue upon a closer post-surgery inspection. Ivanova sued her pathologist Dr. Robert Wolber, who a jury found breached the standard of care and awarded Ivanova $400,000 in damages, last year.
Wolber appealed the jury’s decision finding his negligence resulted in Ivanova’s decision to undergo a mastectomy; Wolber also appealed the award.
On appeal, B.C. Court of Appeal Justice Ronald Skolrood, Justice David Harris and Justice Patrice Abrioux agreed with the jury’s finding of negligence but determined the award was too much.
At trial, noted Skolrood, “Ivanova testified that she experienced significant emotional pain as a result of the mastectomy to her right breast. She considered herself disfigured and ashamed of her body. Physical intimacy with her husband was adversely impacted. These feelings were not ameliorated by the reconstructive surgery.”
But Wolber argued damages should not exceed an award of damages for an unnecessary hysterectomy.
Skolrood noted the $400,000 award was on the high end and went through prior cases for medical damages.
“This Court can take note of the fact that damages awards in the range of $400,000 are generally reserved for cases in which the plaintiff has suffered truly devastating consequences,” stated the judge.
“While no two cases are the same, it is clear that the types of injuries that typically justify an award towards the upper limit are of a different magnitude than what Ms. Ivanova experienced. Her injuries have undoubtedly had a profound impact on her life, however she has not been impacted to the same degree as the plaintiffs in these cases,” the judge added.
Editor's note: This article was edited to reflect Dr. Wolbar is a pathologist, not a surgeon as previously reported.
