Damages reduced in breast cancer misdiagnosis case: BC Court of Appeal

The BC Court of Appeal partially allowed an appeal by a pathologist, reducing damages in a breast cancer misdiagnosis case that led to an unnecessary mastectomy.

In Wolber v. Ivanova, 2024 BCCA 203, Elena Ivanova underwent a right mastectomy and sentinel node biopsy based on a diagnosis of a rare and aggressive form of breast cancer. This diagnosis was derived from a pathology report prepared by Dr. Robert Wolber. However, post-surgery analysis of the excised tissue showed no signs of cancer.

Ivanova sued Dr. Wolber and her surgeon, alleging negligence. A jury found Dr. Wolber breached the standard of care, awarding Ms. Ivanova $400,000 in non-pecuniary damages while exonerating the surgeon. Dr. Wolber appealed the decision.

Ivanova noticed a lump in her breast in January 2016, leading to diagnostic tests and a biopsy conducted by Dr. Wolber. He diagnosed invasive metaplastic carcinoma and recommended further biopsy for a precise diagnosis. Subsequently, Ivanova underwent a mastectomy on March 24, 2016. Follow-up tests revealed no cancer. Ivanova experienced emotional distress and underwent additional reconstructive surgeries.

Dr. Wolber's appeal did not contest the breach of care but argued the damage award was disproportionately high. He presented expert testimony asserting his diagnosis was a reasonable interpretation, supported by six other pathologists.

The Court of Appeal reviewed the causation and damages issues. It upheld the jury’s finding that the breach caused Ivanova to undergo an unnecessary mastectomy. The court noted the significant emotional impact and physical consequences Ivanova faced.

However, given the injuries' nature and impact, the court found the original $400,000 award for non-pecuniary damages excessive. Referencing similar cases and the established upper limit for non-pecuniary damages, the court concluded that $250,000 was more appropriate.

Ultimately, the court upheld the jury’s finding of negligence against Dr. Wolber but reduced the damages from $400,000 to $250,000.