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Mammogram injury suit nets $77,500

Nov 18 2012

A Victoria woman who was injured during a routine mammogram in October 2008 has been awarded $77,500 in damages.

Last year, Joy McKerr sued CML HealthCare Inc., which operates the Richmond Road clinic she attended, and mammography technician Leslie Connie for negligence.

McKerr alleged that during the procedure on her left breast, she told Connie that she was experiencing severe pain and discomfort and asked her to stop. Connie did not stop and completed the mammogram.

McKerr, who was 61 at the time, almost immediately developed swelling and a large bruise or hematoma on her left breast. In February 2009, she was diagnosed with inflammatory breast cancer. She now has metastatic breast cancer and is very ill.

McKerr claimed that her cancer was accelerated by the mammogram injury, which did not go away for several months. She sought substantial damages for pain and suffering, a shortened life expectancy, and damages for loss of income.

In a decision released Friday, B.C. Supreme Court Justice Jennifer Power found Connie, and by proxy, CML Healthcare Inc., negligent in performing the mammogram.

Power found Connie had breached the standard of care of a skilled, knowledgeable and competent mammography technician. She accepted McKerr's evidence that Connie was rushed and in a hurry.

Power also accepted McKerr's testimony that she told Connie she was in extreme pain, was worried she had been improperly placed in the machine and that she needed the procedure to stop.

"In the circumstances, Ms. Connie had a duty to stop the procedure and to explore other options to obtain the image," Power wrote.

Power considered whether the negligence caused McKerr's injuries. Medical evidence at the trial suggested that compression from a mammogram - up to 35.5 pounds - could cause the injury. Court heard that it is common for bruising to occur after the procedure.

Power concluded on the balance of probability that it was possible for the mammogram machine to cause McKerr's injuries.

However, she did not find that the injury exacerbated or accelerated McKerr's pre-existing cancer.

At trial, experts for the plaintiff and the defence agreed that McKerr had an underlying carcinoma at the time. A radiologist noted a "low suspicion finding" on the Oct. 3, 2008, mammogram and recommended followup imaging.

McKerr's physician also advised her to have the follow up diagnostic mammogram. Her appointment was scheduled for Dec. 1, 2008, but McKerr decided she could not tolerate the pain of another procedure.

Instead, she went to Mexico, but returned to Victoria because she was still in pain.

Dr. Melville Shiffman, expert for the plaintiff, testified that in certain circumstances, trauma can accelerate cancer. Defence expert Dr. Kathleen Pritchard testified that a routine mammogram cannot cause inflammatory breast cancer under any circumstances.

Pritchard said it is not a generally held medical or scientific opinion that single or multiple incidents of trauma contribute to the development of breast cancer or speed its progression.

In the end, Power concluded that the scientific evidence is not settled, and said she was not satisfied the hematoma caused the breast cancer.

Power awarded the damages for the traumatic mammogram, the injuries caused by that procedure and a delayed diagnosis of McKerr's cancer by four to six weeks. The pain from the hematoma delayed McKerr's medical followup and disguised the growing cancer during the autumn of 2008, Power said.

"The pain in the immediate aftermath of the mammogram was significant. ... The ongoing emotional suffering related to the mammogram is significant." ldickson@timescolonist.com

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