United States District Court, District of Columbia
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For SHILISA RHODES, Plaintiff: Jack Harvey Olender, Melissa Rhea, Sandra H. Robinson, LEAD ATTORNEYS, JACK H. OLENDER & ASSOCIATES, P.C., Washington, DC.
For UNITED STATES OF AMERICA, Defendant: Heather D. Graham-Oliver, Theresa Ekeoma Dike, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Washington, DC.
BERYL A. HOWELL, United States District Judge.
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.  For the reasons 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 No. 20.  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). , 
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;  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. 
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 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 (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 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.
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 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. 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.  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.
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 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.
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. 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. 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, 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. 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 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 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 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 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 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 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 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 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 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.
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." ). 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 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 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 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 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 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 ...