Boryla v. Pash

• Decision Date: 15 June 1998
• Docket Number: No. 96SC735,96SC735
• Parties: 98 CJ C.A.R. 3040 Gina (Gigi) BORYLA, Petitioner/Cross-Respondent, v. Robert M. PASH, M.D., Respondent/Cross-Petitioner.
• Court: Colorado Supreme Court

Page 123

960 P.2d 123

98 CJ C.A.R. 3040

Gina (Gigi) BORYLA, Petitioner/Cross-Respondent, v. Robert M. PASH, M.D., Respondent/Cross-Petitioner.

No. 96SC735.

Supreme Court of Colorado,

En Banc.

June 15, 1998.

Grimshaw & Harring, P.C., William J. Brady, Lisa K. Norberg, Denver, for Petitioner/Cross-Respondent.

Kennedy & Christopher, P.C., John R. Mann, Elizabeth A. Starrs, Denver, for Respondent/Cross-Petitioner.

Colorado Trial Lawyers Amicus Committee, Brian J. Lampert, Chair, Linda Lupatkin, Denver, for Amicus Curiae The Colorado Trial Lawyers Association.

Chief Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Boryla v. Pash, 937 P.2d 813 (Colo.App.1996), to determine whether the court of appeals correctly reversed a jury verdict awarding the plaintiff $220,000 in noneconomic damages in a case involving a physician's failure to promptly diagnose a patient's breast cancer. The court of appeals held that the trial court erred in not granting, in part, a motion for directed verdict and that a new trial was necessary to determine issues relating to causation and damages. We reverse.

I.

While performing a routine self-exam in early February of 1990, thirty-two-year-old Gina "Gigi" Boryla (Boryla) discovered a lump in her right breast. A subsequent examination by Boryla's family physician revealed a movable mass which could not be successfully aspirated. The family physician referred Boryla to Dr. Robert M. Pash (Dr. Pash), who examined Boryla on February 20, 1990, and detected a "nodule" that, in his words, was "smaller than a marble" and "larger than a pea." Dr. Pash performed a biopsy on February 22, 1990, but did not request a mammogram. Test results from the biopsy were negative for cancer.

Boryla returned to see Dr. Pash on April 30, 1990, complaining that the lump in her breast had not gone away. Dr. Pash performed a needle aspiration of the thickened area but did not draw blood because Boryla was in mid-menstrual cycle. For this reason, Dr. Pash asked Boryla to return in two weeks if the problem persisted. On May 21, 1990, Dr. Pash examined Boryla again and scheduled a mammogram for May 23, 1990, as well as another biopsy for June 4, 1990. The treating radiologist who performed the mammogram reported that "[i]n the upper central portion of [Boryla's] right breast, there is an area of increased density which is extremely irregular.... It measures approximately three centimeters in diameter in the lateral view and four by three centimeters in the craniocauded projection. The finding is highly suspicious for a malignancy." After receiving the mammogram results, Dr. Pash rescheduled the biopsy for May 25, 1990, whereupon the growth in Boryla's breast was determined to be cancerous and invasive. ¹ A radical mastectomy and surgical removal of Boryla's lymph nodes was performed on June 1, 1990. The surgery was successful and Boryla has not experienced any recurrence of cancer since her operation.

On February 18, 1992, Boryla sued Dr. Pash for negligence in not promptly diagnosing her cancer. Specifically, Boryla alleged that the ninety-two-day delay in diagnosing her condition resulted in an increased number of cancer cells in her body and caused the tumor to grow in size. Boryla sought damages for

i) past, present and future pain, suffering and discomfort, both physical and mental;

ii) severe and at times debilitating emotional distress, including fear of an increased risk of recurrence of cancer;

iii) loss of enjoyment of life, past, present and future;

iv) damages, losses and other physical and psychological injuries that are not known at this time;

v) loss of time; and

vi) reasonable and necessary medical and other incidental and out-of-pocket expenses.

A trial ensued on March 7, 1994, approximately four years after Dr. Pash first examined Boryla. Boryla's treating oncologist, Dr. Scott Sedlacek, described Boryla's cancer as "moderately aggressive" and testified that the average cancer cell doubles once every hundred days and that it was more probable than not that Boryla experienced some cancerous growth during the period involving the delayed diagnosis. ² Dr. Sedlacek also testified that a patient with cancer exactly like Boryla's had a twenty-five percent risk of the cancer recurring in the future and that these patients have the highest chance of recurrence in the five years following surgery. ³ Dr. Sedlacek further explained that a recurrence of cancer in these patients is usually terminal.

Boryla's primary expert, Dr. Julian Frieden, testified that, in his expert opinion, the three-month delay in treating Boryla's cancer increased the chances of cancer metastasis or spread, and decreased the chances of the cancer's curability because "every day counts." Dr. Frieden also testified that in his expert opinion, the three-month delay in diagnosing Boryla's cancer increased the risk of cancer recurrence because "[e]very day, there is a chance of cells ... metastasizing to various organs." Finally, Dr. Frieden testified that it was "entirely reasonable" for Boryla to have "cancerphobia" because of the delayed diagnosis. ⁴

Even though Dr. Pash's experts were of the opinion that the delay in diagnosing Boryla's cancer did not alter her treatment or prognosis, several acknowledged the physical effects associated with the delay. For example, Dr. Leonard Glode, a professor at the University Of Colorado Medical School, testified on cross-examination that Boryla's cancer cells continued to multiply during the period involving the delayed diagnosis. Dr. Glode also testified that because the average tumor doubles in volume every forty-five days, Boryla's tumor could have doubled in size during this period. ⁵ Dr. Glode also conceded on cross-examination that the larger the size of the tumor, the worse the prognostic indicator for recurrence.

After the presentation of Boryla's case, Dr. Pash moved for a directed verdict, claiming that Boryla had failed to meet her burden in proving injuries caused by the delayed diagnosis. The trial court denied the motion, concluding that the court of appeals' decision in MacMahon v. Nelson, 39 Colo.App. 355, 568 P.2d 90 (1977), permitted the presentation of Boryla's claims to the jury. However, the trial court agreed to "take this under advisement" and offered to reconsider the motion after the jury's verdict.

The jury was instructed on damages as follows:

If you find in favor of the Plaintiff Gina Boryla, you shall award as her actual damages, insofar as they have been proved by a preponderance of the evidence, and insofar as they were caused by the Defendant's negligence, an amount which will reasonably compensate the plaintiff for her damages, if any.

In determining such damages you shall consider the following:

1. any noneconomic losses or injuries incurred to the present time, or which will probably be incurred in the future including: pain and suffering; inconvenience; emotional stress; and impairment of the quality of life caused by an increased risk of cancer due to an increase of cancer cells in her body.

2. any economic loss consisting of expenses for counseling and therapeutic services. ⁶

(Emphasis added.) On March 14, 1994, the jury awarded Boryla $220,000 in noneconomic damages. No economic damages were awarded. Dr. Pash subsequently renewed his motion for a directed verdict, or in the alternative, for judgment notwithstanding the verdict. The trial court denied both motions. The trial court also denied Dr. Pash's post-trial motions requesting a new trial and a remittitur of damages. Both parties appealed. ⁷

On appeal, the court of appeals' opinion considered two issues. First, the court of appeals held that the trial court erred in not granting Dr. Pash's motion for a directed verdict in part to preclude Boryla from recovering damages for the possibility that she might suffer a recurrence of cancer in the future. Specifically, the court of appeals held that Boryla could not recover damages for an increased risk of cancer recurrence because she failed to prove to a reasonable medical probability that this future injury was more likely than not to occur. For this reason, the court of appeals held that a new trial was warranted.

Second, the court of appeals rejected Dr. Pash's argument that Boryla could only recover for her present fear of recurring cancer caused by Dr. Pash's negligence if she demonstrated that the increased risk of a recurrence of cancer was more probable than not. The court of appeals determined that Boryla's fear need only be reasonable and proximately caused by Dr. Pash's negligence. Nevertheless, the court of appeals explained that, on remand, "the trial court must ... appropriately instruct the jury on the reasonableness" of Boryla's fear of cancer. Boryla, 937 P.2d at 819-20.

Because the court of appeals determined that a new trial was warranted, it refused to consider the remaining issues raised on appeal. We granted certiorari to consider the issues raised by the court of appeals' decision.

II.

Boryla argues that the court of appeals erred in concluding that Dr. Pash's motion for a directed verdict should have been granted in part to preclude Boryla from recovering damages for the risk of a future recurrence of cancer. Boryla also asserts that the jury was appropriately instructed on the applicable law and that sufficient evidence supports the jury's verdict. We agree.

Directed verdicts are not favored because "[w]hen a plaintiff makes out a prima facie case, even though the facts are in dispute, it is for the jury, and not the judge, to resolve the conflict." See Rocky Mountain Hosp. and Med. Serv. v. Mariani, 916 P.2d 519, 526-27 (Colo.1996) (quoting Romero v. Denver & Rio Grande W. Ry., 183 Colo. 32, 37, 514 P.2d 626, 629 (1973)). In reviewing a motion for a directed verdict, a court must consider all of the facts in the light most favorable to the...