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Mammarella v. Evantash

Supreme Court of Delaware

May 15, 2014

BARBARA A. MAMMARELLA, Plaintiff-Below, Appellant,

Submitted April 16, 2014

Case Closed June 2, 2014.

Court Below: Superior Court for the State of Delaware in and for New Castle County. C.A. No. N11C-12-242 (VLR).

Ben T. Castle, Esquire, Hudson & Castle Law LLC for Appellant Barbara A. Mammarella.

Dennis D. Ferri, Esquire, and Allyson Britton DiRocco, Esquire, Morris James LLP for Appellee Alan B. Evantash, M.D.

Andy E. Vernick, Esquire, and Ryan T. Keating, Esquire, Wharton Levin Ehrmantraut & Klein, P.A. for Appellees All About Women of Christiana Care, Inc. and Christine W. Maynard, M.D.

Before STRINE, Chief Justice, HOLLAND, and JACOBS, Justices.


Page 630

STRINE, Chief Justice:


Barbara A. Mammarella sued her radiologist, Alan B. Evantash, M.D., her OB/GYN, Christine M. Maynard, M.D., and All About Women of Christiana Care, Inc. (collectively, the " Healthcare Providers" ) for medical malpractice. To establish her claim, Mammarella needed to present expert testimony that could support a jury verdict that the alleged negligence, which was a six-month delay in her breast cancer diagnosis, was the proximate cause of her injury, which was an alleged change in treatment that required Mammarella to undergo chemotherapy. But the testimony of Mammarella's sole medical expert on causation, Dr. David Biggs, could not support a jury verdict because Dr. Biggs did not testify to a reasonable degree of medical probability that Mammarella's treatment options had changed as a result of the alleged negligence. Therefore, the Superior Court's determination that no reasonable jury could find in favor of Mammarella on the issue of medical causation was correct, and the Superior Court's grant of judgment as a matter of law is affirmed.

Page 631


During an annual screening mammogram on October 13, 2009, Dr. Kristina Siddall, a radiologist, noticed two nodules in Mammarella's breast, each 6 millimeters in dimension, and recommended a follow-up screening. Later evidence established that there was, in fact, only one nodule. A second radiologist, Dr. Alan B. Evantash, performed the follow-up screening on October 16, 2009. Dr. Evantash told Mammarella that there was " [n]o evidence of malignancy" and that she should return for another mammogram in one year. A copy of Dr. Evantash's report was sent to Dr. Christine M. Maynard, Mammarella's OB/GYN, who called Mammarella on October 20, 2009 to discuss the results. During the phone call, Mammarella indicated that she was not comfortable with waiting a full year before the next screening, so Dr. Maynard scheduled another mammogram in six months. That follow up screening occurred on April 22, 2010, and revealed that the nodule had grown to 8 millimeters. Dr. Emily Penman, a surgeon, performed a biopsy on May 7, 2010, determined that the nodule was malignant, and diagnosed Mammarella with breast cancer.

On May 13, 2010, Mammarella met with a breast cancer multi-disciplinary team that included Drs. Penman and Biggs, among others, to discuss treatment options. At the time of this meeting, Mammarella's breast cancer stage was unknown pending further testing. Dr. Penman recommended a lumpectomy to remove the tumor. Mammarella's claim is premised on her contention that Dr. Biggs told her that day that she would be eligible to have radiation treatment if the tumor was 8 millimeters or less in size. In other words, Mammarella testified that Dr. Biggs led her to understand that she would need both radiation and chemotherapy if her tumor, when removed, was larger than 8 millimeters, but that she would need only radiation and not chemotherapy if her tumor was 8 millimeters or less. Dr. Biggs later testified that Mammarella's understanding was not accurate and that he was only trying to provide her with a general framework about possible treatment options, not a specific treatment recommendation that could be determined solely by the size of the tumor.[2]

Dr. Penman performed the lumpectomy and removed the tumor on May 27, 2010. The tumor was determined to be 11 millimeters at its largest dimension. Dr. Biggs diagnosed Mammarella with Stage I, Grade III breast cancer and recommended that she undergo twelve weeks of chemotherapy.[3] Mammarella claims that chemotherapy

Page 632

is more disfiguring, disabling, painful, and fatiguing than radiation.[4] Mammarella testified that she suffered greatly as a result of the chemotherapy, by experiencing symptoms including hair and fingernail loss, severe aches and pains, nausea, headaches, fatigue, sleeplessness, dry mouth, sore throat, and digestive problems.[5]


Mammarella filed a medical negligence action, alleging that the Healthcare Providers were negligent in failing to diagnose the lump in her breast as cancer immediately. Mammarella claims that the six-month delay in her diagnosis caused a change in her treatment options, namely that she had to undergo chemotherapy rather than radiation. To establish her claim, Mammarella needed to offer sufficient evidence for a jury to find a causal link between the six-month delay in her diagnosis and the fact that she had to undergo chemotherapy. In other words, Mammarella had to provide sufficient evidence from which a jury could determine that if the Healthcare Providers had diagnosed her cancer six months earlier, then she would not have had to undergo chemotherapy.

Mammarella identified four medical experts who would testify in her case: (i) Dr. David N. Powers, an OB/GYN, (ii) Dr. Lawrence Milner, a radiologist; (iii) Dr. Penman, Mammarella's treating surgeon; and (iv) Dr. Biggs, Mammarella's treating oncologist.[6] During discovery, Dr. Powers only testified about the standard of care, and not about causation.[7] Dr. Milner also did not testify about causation.[8] Dr. Penman testified that Mammarella's prognosis, treatment, and cancer stage were not affected by the alleged delay in diagnosis, and generally deferred to Dr. Biggs.[9] Thus, Dr. Biggs was the only expert that Mammarella designated ...

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