Higher court reverses dismissal of 34-year old woman's negligence case arising out of double-mastectomy where pathology report found no cancer
Stacey Van Buren identified a suspicious lump on her breast and visited the doctor for evaluation. Her surgeon, Carlotta Maresca, M.D., performed a needle aspiration, sent the specimen for analysis in the Covenant Health System, and recommended an immediate double mastectomy. Although the pathology report indicated no cancer was present, that message never made its way to Maresca, and she removed both of the 34-year old woman's breasts nine days later. When Van Buren learned that the double-mastectomy had occurred in the absence of any cancer, she sued Maresca and everyone else in the chain of custody of the path report for negligence. She argued that it was not medical malpractice, but rather a lack of "ordinary care" to allow such invasive surgery to occur in the presence of a benign pathology report.The trial judge dismissed Van Buren's case, holding that she needed to allege and prove medical malpractice, and in order to do that, she needed to specify in advance, in a Notice of Intent and Affidavits of Merit, precisely who "dropped the ball," and what he or she did wrong. The Court of Appeals reversed. The three higher court justices pointed out that Van Buren and her attorneys could not possibly know the details necessary to support a malpractice claim without formal discovery and that it was improper for the Court to dismiss the case before such discovery was conducted.