Tom Riley Law Firm, P.L.C.

A Linn County District Court jury, apparently rejecting testimony that early detection of breast cancer does not help save women's lives, awarded $445,000 Friday to a Toddville woman and her family because her doctor failed to diagnose a lump in her breast as cancer.

Tom Riley of Cedar Rapids, the lawyer for 45-year-old Elaine Deburkarte, said it was the first "loss of chance" judgment in Iowa. He said the jurors' decision hinged on whether they believed Deburkarte had "lost her chance" to be treated because her doctor didn't make the correct diagnosis sooner.

Riley also said the verdict "repudiates the doomsday opinion" of a Kentucky physician who testified earlier in the week that early detection of breast cancer does not improve women's chances of surviving.

The malpractice suit had pitted Deburkarte and her husband, Donald, against Dr. Richard Louvar of Cedar Rapids. In the suit, Deburkarte said she found a lump in her left breast during a self-examination in August 1981, but the lump was not diagnosed as cancer until a mastectomy was performed in June 1982.

Appeal Intended
Riley said the seven-man, one-woman jury awarded $405,000 to Deburkarte and $40,000 to her husband. With interest, the award will reach $520,000, he said.

Louvar's lawyer, Raymond Stefani of Cedar Rapids, said the decision would be appealed.

"Physicians are confronted with a terrible disease, this breast cancer, and there are types of it, which this woman has, that defy all of the techniques for screening and detection," Stefani said. He described the award as "extremely disturbing."

Riley said the case was different from most malpractice suits, because the Deburkartes weren't claiming the doctor had done something to cause her pain.

"This is the first case in Iowa where a jury awarded damages for a loss of chance," Riley said. "Usually where there's a personal injury or malpractice, the claim is that the doctor caused the accident. . . . We're talking about a situation here where we don't know that she would live longer if she had been diagnosed earlier. But she had lost her chance to find out."

The cancer has spread throughout Deburkarte's body, Riley said, and doctors have said she will not survive the disease.

In that respect, he said, the court victory Friday was a bittersweet one for the Deburkartes. One doctor testified for the family that her chances for survival were "50-50" if treatment had begun earlier.

"It Wasn't the Money"
"It wasn't the money" the family wanted, he said. "Very honestly, the Deburkartes were happy because it was really the principle of the thing."

Stefani said the jurors apparently failed to recognize the different types of breast cancer. He said Louvar "followed the necessary and approved medical management for Mrs. Deburkarte's condition."

The case received national attention when Dr. John Spratt, a professor of surgery at the University of Louisville, testified. "There's no proof at all you can improve the prognosis of breast cancer by treating it early."

Spratt's statement differed with the recommendations of the American Cancer Society, the American Medical Association and the U.S. Department of Health and Human Services. All encourage women to practice monthly self-examinations.

Stefani said Spratt was referring to a specific type of breast cancer. In the Deburkarte case, Spratt testified that the cancer probably already had spread by the time she noticed a lump. "By the time recognizable signs show themselves, the case is far advanced," he said.

Said Riley: "In my opinion, it did not add to his credibility, although the guy has credentials . . . I would call the verdict a victory for the position of the American Cancer Society."

Tom Riley Law Firm, P.L.C.

4040 First Avenue NE
Cedar Rapids, IA 52402-3140

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PO Box 3088
Iowa City, IA 52244-3088

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