MEMORANDUM OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

BERYL A. HOWELL, District Judge.

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.1 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:

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. 20.2 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).3,4

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;5 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.6

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 $149,886.7 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.8

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

C. PLAINTIFF'S BACKGROUND

D. DR. HILL-DANIEL'S PRACTICE AND UNITY PROCEDURES

E. THE PLAINTIFF'S VISIT WITH DR. HILL-DANIEL ON DECEMBER 3, 2009

F. THE PLAINTIFF'S MEDICAL HISTORY FROM JANUARY 2009 TO AUGUST 2010

G. PLAINTIFF'S VISIT WITH DR. HILL-DANIEL ON OCTOBER 18, 2010

H. UNITY'S REFERRAL PROCESS

I. THE PLAINTIFF'S DIAGNOSTIC TESTS

J. THE PROGRESSION OF THE PLAINTIFF'S BREAST CANCER

General Progression

Stage of cancer in December 2009

Progression of cancer after December 2009

The growth rate of the plaintiff's cancer

K. Breast cancer prognoses

L. The plaintiff's medical treatment

                                                                                                                           Recommended
Time of                 Corresponding                                                                                       Course of
Diagnosis                   Event                    Witness                 Cancer Stage           Prognosis               Treatment

December            The plaintiff visits Dr.        Dr. Tucker               Stage I              80-85% cure
2009-April          Hill-Daniel three               (Plaintiff's                                  rate over five
2010                times:                          expert)                                       years

                    — December 3, 2009, for          Dr. Pushkas              Stage I              98% survival.        Imaging study, biopsy,
                    her first breast                (Plaintiff's                                  Substantial          mastectomy, 24-weeks
                    complaints,                     expert)                                       probability of       of chemotherapy
                                                                                                  cure.

                    — January 8, 2010, for           Dr. Feigert              Stage III-B         Less than 50%
                    fertility problems, and         (Defendant's             (invasion of the     survival.
                                                    expert)                  skin) to Stage
                                                                             IV

                    — April 30, 2010, for a
                    check-up and eye
                    problems.

August-November     August 10, 2010: The            Dr. Tucker               Stage I to           Stage I: 80-85%
2010                plaintiff calls to schedule                              Stage II             cure rate
                    an appointment                                                                over five years;
                    with Dr. Hill-Daniel                                                          Stage II: Over
                    for a mammogram referral                                                      50% cure rate.

                    after her visit to
                    Fort Washington
                    Emergency Room.
                    Her appointment is
                    rescheduled by Unity
                    twice.

                                                    Dr. Pushkas              Stage II             70% ten-year         Imaging study, biopsy,
                                                                                                  survival rate.       mastectomy, 24-weeks
                                                                                                  Substantial          of chemotherapy
                                                                                                  probability of
                                                                                                  cure.

                    October 18, 2010: The           Dr. Feigert              Stage III-B to       Less than 50%
                    plaintiff visits Dr.                                     Stage IV             survival.
                    Hill-Daniel, who feels
                    a mass in the plaintiff's
                    left breast and
                    enlarged lymph nodes,
                    and refers her for
                    ultrasound.

December-March      December 14, 2010:              Dr. Tucker               Stage IV             Incurable
2011                Breast Ultrasound
                    performed.

                    February 9, 2011:               Dr. Pushkas              Stage IV             15% fiveyear
                    Mammogram performed.                                                          survival rate.
                                                                                                  Incurable.

                                                    Dr. Feigert              Stage IV             Incurable

                    March 8, 2011:                  Dr. Yoo (Plaintiff's     Stage IV             Incurable            Hormone treatment,
                    Biopsy performed.               treating                                                           chemotherapy, mastectomy,
                                                    oncologist)                                                        radiation
                                                                                                                       therapy, induced menopause,
                                                                                                                       other palliative
                                                                                                                       treatments,
                                                                                                                       hospice care

M. The Plaintiff's Economic Damages

N. The Plaintiff's Non-Economic Damages

III. CONCLUSIONS OF LAW

In reaching the conclusions of law, the Court evaluates the evidence to determine whether the plaintiff has established each element of the negligence claim against the defendant by a preponderance of the evidence. See District of Columbia v. Price, 759 A.2d 181, 183 (D.C.2000) ("In order to show negligence, a plaintiff must establish, by a preponderance of the evidence, the applicable standard of care, a breach of that standard by the defendant, and a causal relationship between the breach and the plaintiff's injury.") (citing District of Columbia v. Wilson, 721 A.2d 591, 597 (D.C.1998)); Clark v. Feder Semo & Bard, P.C., 895 F.Supp.2d 7, 29 (D.D.C.2012) (D.D.C. Aug. 15, 2012) ("The Court reviews the evidence under the `default rule for civil cases,' the `preponderance of the evidence' standard.") (citing CIGNA Corp. v. Amara, ___ U.S. ___, 131 S.Ct. 1866, 1881, 179 L.Ed.2d 843 (2011)); see also Ascom Hasler Mailing Systems, Inc. v. United States Postal Service, 885 F.Supp.2d 156, 181 (D.D.C.2012).12 The Court first reviews the applicable legal standards for negligence claims for medical malpractice under the FTCA, and then assesses whether the plaintiff has proven, by a preponderance of the evidence, each of the elements for her negligence claim against the defendant.

A. THE APPLICABLE LEGAL STANDARDS

1. The Federal Tort Claims Act

The United States, as a sovereign, is absolutely immune from suit and, unless Congress has unequivocally consented to permit a cause of action, no court has jurisdiction to entertain a claim against the United States. United States v. Sherwood, 312 U.S. 584, 586-87, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Congress created a limited waiver of sovereign immunity of the United States by enacting the FTCA, the provisions of which must be strictly construed in favor of the United States. See Dep't of Army v. Blue Fox, Inc., 525 U.S. 255, 261, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999); United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980); United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979); Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 575 (D.C.Cir.2003).

The FTCA creates liability for certain torts committed by agencies of the United States or their employees "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674; see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) ("In the FTCA, Congress waived the United States' sovereign immunity for claims arising out of torts committed by federal employees."). The Supreme Court has explained that "the effect of the Tort Claims Act is to waive immunity from recognized causes of action, not to visit the Government with novel and unprecedented liabilities." United States v. Brown, 348 U.S. 110, 112-13, 75 S.Ct. 141, 99 L.Ed. 139 (1954) (internal quotation marks and citation omitted). Moreover, the liability of the United States for the negligent or wrongful acts or omissions of its employees, acting within the scope of their employment, is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). The Supreme Court has "consistently held that § 1346(b)'s reference to the `law of the place' means law of the State — the source of substantive liability under the FTCA." FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (collecting cases); Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992) (in medical malpractice cases "the extent of the United States' liability under the FTCA is generally determined by reference to state law"). Hence, the FTCA incorporates state law, including the elements of an alleged tort as defined by state tort law. Tri-State Hosp. Supply Corp., 341 F.3d at 576. Since the alleged acts and omissions giving rise to the plaintiff's negligence claim against the government occurred in the District of Columbia, the parties do not dispute that the law of the District of Columbia applies. See Pl.'s Corrected Proposed Concls. of Law ("Pl.'s Concls.") at 2; Def.'s Proposed Concls. of Law ("Def.'s Concls.") at 2. Thus, the liability of the United States is measured against the standards for medical malpractice in the District of Columbia.

2. Negligence Standard for Medical Malpractice

Under District of Columbia law, the plaintiff in a medical malpractice action must demonstrate by a preponderance of the evidence three elements: (1) the applicable standard of care; (2) the fact that the defendant, through his or her actions or inactions, deviated from that standard of care; (3) and that a causal relationship exists between the defendant's deviation and the plaintiff's injuries. Flores-Hernandez v. United States, 910 F.Supp.2d 64, 72, (D.D.C.2012) (enumerating tripartite burden in medical malpractice actions) (citing Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990)); Ornoff v. Kuhn & Kogan, Chartered, 549 A.2d 728, 731 (D.C.1998); Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 623-24 (D.C.1986)); see also Burton v. United States, 668 F.Supp.2d 86, 98 (D.D.C.2009); Appleton v. United States, 180 F.Supp.2d 177, 182 (D.D.C.2002) (in FTCA negligence suit, the plaintiff "bears the burden of proof, by a preponderance of the evidence, to demonstrate the applicable standard of care, deviation from that standard, and the causal relationship between the deviation and plaintiff's injury") (citing Messina v. District of Columbia, 663 A.2d 535, 537-38 (D.C.1995)); Giordano v. Sherwood, 968 A.2d 494, 498 (D.C.2009); Nwaneri v. Sandidge, 931 A.2d 466, 470 (D.C.2007).

Each of these elements usually must be proven by expert testimony. Porter v. McHugh, 850 F.Supp.2d 264, 267 (D.D.C.2012) (citing Cleary v. Group Health Ass'n, 691 A.2d 148, 153 (D.C.1997) ("Generally, in a medical malpractice negligence action, the plaintiff must present medical expert testimony to establish the standard of care, expert testimony that the defendant's conduct deviated from that standard of care, and expert testimony establishing that the alleged deviation proximately caused the plaintiff's injuries")); see also Woldeamanuel v. Georgetown Univ. Hosp., 703 A.2d 1243, 1245 (D.C.1997). "While absolute certainty is not required, opinion evidence that is conjectural or speculative is not permitted." Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 367 (D.C.1980). Indeed, the requirement of expert testimony is designed to mitigate the risk that findings might be "based on mere conjecture or speculation[,]" or incorrect assumptions. Giordano, 968 A.2d at 498. Where the experts disagree, the task of the finder of fact is to evaluate the sufficiency of the foundation for each proffered opinion, as measured against the factual evidence and the applicable medical or scientific principle. See id.; Nwaneri, 931 A.2d at 470; Washington, 579 A.2d at 181; Haidak v. Corso, 841 A.2d 316, 327 (D.C.2004) ("Expert testimony may be excluded when the expert is unable to show a reliable basis for [his] theory."). As discussed below, the plaintiff has carried her burden on each of these elements.

B. THE DEFENDANT WAS NEGLIGENT IN FAILING TIMELY TO DIAGNOSE THE PLAINTIFF'S BREAST CANCER.

The parties agree that the applicable standard of care is a national standard, "not just a local custom." Nwaneri, 931 A.2d at 470 (quoting Travers v. District of Columbia, 672 A.2d 566, 568 (D.C. 1996)); Flores-Hernandez, 910 F.Supp.2d at 72. Generally, the applicable standard of care for all health care professionals and facilities is the "course of action that a reasonably prudent doctor with the defendant's specialty would have taken under the same or similar circumstances." Strickland v. Pinder, 899 A.2d 770, 773 (D.C.2006) (quoting Meek v. Shepard, 484 A.2d 579, 581 (D.C.1984)); Morrison v. MacNamara, 407 A.2d 555, 561 (D.C.1979) (stating that the standard is "that degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances"). Since Dr. Hill-Daniel is a family practice doctor, the parties agree that the applicable standard is the national standard of care for a reasonably prudent family practice doctor. The plaintiff alleges that Dr. Hill-Daniel breached that standard at multiple points during her treatment of the plaintiff. The Court agrees, and addresses each alleged breach below.

1. December 2009-April 2010

Based on the factual circumstances in this case and the testimony of the expert witnesses, the Court finds that Dr. Hill-Daniel's conclusions and the corresponding treatment plan that she prescribed during the plaintiff's December 3, 2009 visit were not within the national standard of care for a family practice doctor.

Both of the plaintiff's experts testified that Dr. Hill-Daniel first breached the national standard of care by failing to consider breast cancer as part of her "differential diagnosis," which is the list of possible diagnoses for a particular set of symptoms. Dr. Sutherland testified that breast cancer "absolutely" had to be included on the differential diagnosis of the plaintiff's breast complaints at the December 9, 2009 visit. Trial Tr. ECF No. 69 at 39:25-40:8. Dr. Margo expressed the same opinion. Trial Tr. ECF No. 70. at 64:6-:8. Notably, Dr. Margo's opinion was premised entirely on the words written on the progress note for the plaintiff's December 3, 2009, visit: that the plaintiff came in because of "pain and tenderness in her breasts," that she complained of "tenderness and lumpiness," that there was no change in this pain or lumpiness with her menstrual cycle, and that upon examination, Dr. Hill-Daniel found no masses, no retractions, and no visible lymph nodes. See id. at 54:12-58:22. Dr. Margo emphasized the significance of the notation that the symptoms did not change with the plaintiff's menstrual cycle. According to Dr. Margo, women tend to get cysts in their breasts that go away after their period, so the fact that the plaintiff's lumpiness did not change with her menstrual cycle made that diagnosis less likely. Id. at 55:20-:23. Dr. Sutherland also focused primarily on the undisputedly non-cyclic nature of the plaintiff's complaints. Trial Tr. ECF No. 69 at 39:20-24 ("So the differential diagnosis in noncyclical breast pain would include potentially chest wall tenderness, breast cancer. But the differential diagnosis had to be developed that would consider all the different possibilities.").

Relying primarily on the plaintiff's young age and on what they perceived as the bilateral nature of her complaints, i.e., meaning that they pertained to both breasts, defendant's experts Dr. Bethea and Dr. Koch testified that the national standard of care did not require Dr. Hill-Daniel to consider breast cancer as part of her differential diagnosis. Trial Tr. ECF No. 73 at 32:8-:12 (Dr. Bethea's testimony that for a "[t]wenty-four year-old with bilateral benign fibrocystic findings, it would be inappropriate to list cancer as a very real concern simply because it would not be a very real concern. It would be a very rare occurrence."); id. at 89:8-:15 (Dr. Koch's testimony that Dr. Hill-Daniel's assessment was "perfectly reasonable" for a "twenty-four-year-old woman complaining of bilateral breast pain and lumpiness in her breasts.").

The Court finds, in addition, that the plaintiff's experts succeeded in showing that young age is not a credible reason for declining to list breast cancer on a differential diagnosis for a woman presenting with the plaintiff's complaints of feeling a "knot" in her breast and noncyclical pain, in the context of a medical history of both grandmothers' having breast cancer. Dr. Sutherland testified that "many breast cancers that are diagnosed in this country today come from the findings of the patient's own self breast examination, and that's particularly true in the younger individuals when routine screening isn't necessarily done." Trial Tr. ECF No. 69 at 38:7-:12. Dr. Margo added that "young women often aren't that sensitized to their body, so a young woman coming in complaining of breast lumps, which is not a common complaint of young women, I would pay more attention to it." Trial Tr. ECF No. 70 at 78:25-79:4. Moreover, Dr. Margo testified that even though the incidence of breast cancer is rare in women of the plaintiff's age, "young women tend to have very aggressive breast cancers," so it is particularly important to diagnose a young woman's breast cancer early. Id. at 78:19-:22. In her expert opinion, breast cancer had to be on the differential diagnosis because "it was the most dangerous thing to miss." Id. at 64:6-:8; see also id. 65:16-:18 (Dr, Margo's testimony that "if it's something that would be really terrible if you missed it, then you need to make sure you're right" that the cause of the concerns is not that thing).

The defendants' experts' reliance on the bilateral nature of the plaintiff's complaints also diminishes the credibility of their opinions. See Haidak v. Corso, 841 A.2d 316, 327 (D.C.2004) ("Expert testimony may be excluded when the expert is unable to show a reliable basis for [his] theory."). The plaintiff testified that she told Dr. Hill-Daniel during the December 3, 2009 visit that she had a pain and a knot in her left breast. Trial Tr. ECF No. 55 at 78:13-:14 ("I told her that I had soreness and tenderness in both of my breasts, and a pain and a knot in my left breast."). Dr. Hill-Daniel testified that the plaintiff did not specify that the knot was in one particular breast, Trial Tr. ECF No. 58 at 4:7-:12 ("As noted in the chart, [the plaintiff] came in with a new complaint of breast tenderness and lumpiness. She stated that her breasts were tender all the time. When I asked her in more detail about that, she actually held under her breasts and basically just motioned that both breasts were tender and felt lumpy."); id. at 18:18-:23 (Upon questioning by the Court about whether Dr. Hill-Daniel asked the plaintiff about her use of the term "knot," Dr. Hill-Daniel responded, "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 [sic], not one specific knot."). Yet, the plaintiff's recollection that she complained of finding a knot in her left breast is wholly consistent with the description of symptoms that she undisputedly gave to medical providers at Howard University Hospital and Fort Washington Hospital in the following months, see Pl.'s Ex. 104, at 23061 (Howard University Hospital medical record from May 19, 2010 describing chief complaint as "knots on left breast"); Pl.'s Ex. 6, at 6003 (Fort Washington medical record from August 9, 2010 describing patient's complaint as "knot on LT breast"). The parties also agree that the notation on the Unity progress note for the December 3, 2009, visit is ambiguous as to whether the complaint of lumpiness pertained to one breast or both breasts. Pl.'s Ex. 1, at 1013; Def.'s Ex. 1, at 8 ("Pt also concerned that breast [singular] are [plural] lumpy."). When questioned about the significance of this notation, Dr. Hill-Daniel became particularly defensive. Trial Tr. ECF No. 58 at 59:18-:25 ("Q: And how did you spell breast? Just spell it out for us the way you wrote it in your note. A: B.R.E.S.T. [sic] Q: Okay. And that would indicate singular? A: The verb used after that is plural, [are]. So that breast is a typo. Q: Or the word [are] is a typo? A: It's more common to leave off an S than to change a verb."). In light of all of these factors, the Court is inclined to believe the plaintiff's testimony that she specifically complained to the healthcare providers at Unity about a knot in her left breast, in addition to complaining that she felt tenderness and lumpiness in her breasts generally.

Dr. Sutherland also testified that the plaintiff's family history of breast cancer increased the importance of including breast cancer on the differential diagnosis because the fact that her two grandmothers were both diagnosed with breast cancer increased her risk. Trial Tr. ECF No. 69 at 40:4-:8 ("And one of the other reasons, you know, for that is she was at higher risk also because of the family history. She had two grandmothers that had family — or have a history of breast cancer, which increases her risk."). He testified that an article about screening guidelines for breast cancer, as part of the Guam breast and cervical cancer early detection program, supports that opinion, Trial Tr. ECF No. 55 at 4:6-:9, and, indeed, the article states that one or more first- or second-degree relatives with breast cancer at an early age (less than 40-50 years of age) can be a red flag suggestive of genetic susceptibility to breast cancer. Pl.'s Ex. 67, at 4.

Whether the plaintiff informed Dr. Hill-Daniel about her family history of breast cancer is another disputed matter. The plaintiff testified that she told both Dr. Hill-Daniel and the medical assistant at Unity that her two grandmothers had been diagnosed with breast cancer. Trial Tr. ECF No. 55 at 79:16 (responding to counsel's question "would you describe for us... the nature of the discussion [that she had with Dr. Hill-Daniel about cancer]," the plaintiff said, "I told her I had two grandmothers that had breast cancer,"); id. at 128:17-:18, 129:5-:6 (testifying that she "told them at Unity" that she had a family history of breast cancer and that she "told them numerous times when I was, when I seen the nurse before I seen Dr. Hill-Daniel"). Dr. Hill-Daniel's denial that the plaintiff mentioned her grandmothers' breast cancer is not inconsistent with the plaintiff's testimony that she disclosed this critical family medical history to the medical assistant. Doctors and medical assistants at Unity generally communicate only through written notes in the medical record, and any information obtained by the medical assistant at the short initial interview with a patient about the reason for the visit that is not documented by the assistant may never reach the treating physician. At the same time, a patient who has unburdened herself in an initial interview with a medical professional by describing pertinent symptoms, history or concerns may rightly believe that the key information will be handled appropriately and passed along as needed without the need for repetition.

In this case, the medical assistant's notes concerning the December 9, 2009 visit do not relay any of the deep concern that the plaintiff described herself as having, in large part due to her grandmothers' history of breast cancer. Trial Tr. ECF No. 55 at 80:4-:12. Rather, this note consists of abbreviated descriptions of the plaintiff's concerns documented in three bullet points. Pl.'s Ex. 1, at 1013; Def.'s Ex. 1, at 8. Important medical history information that the plaintiff told the medical assistant may not have reached Dr. Hill-Daniel because of a lapse in the written communication of the medical assistant. The Court credits the plaintiff's recollection that she mentioned her grandmothers' breast cancer to Unity medical personnel based on her testimony that her knowledge of what happened with her grandmothers is what prompted her concern about her own breast pain and lumpiness in the first place, and her request for a mammogram. Trial Tr. ECF No. 55 at 80:4-:12. According to Dr. Sutherland, Dr. Hill-Daniel had the responsibility to pursue whether the plaintiff had any relatives with breast cancer beyond her mother and sisters. Trial Tr. ECF No. 69 at 71:7-:10. The progress note contains no evidence that Dr. Hill-Daniel even asked the plaintiff whether she had grandparents with breast cancer. The progress note states only that there is no history of breast cancer in "first-degree relatives," which is defined as a mother, sister, father, or brother, and it is silent as to all other degrees of relatives. Pl.'s Ex. 1, at 1013; Def.'s Ex. 1, at 8. In sum, Dr. Hill-Daniel's view that the plaintiff had no family history of breast cancer was incorrect because the plaintiff reported her family history at least to the medical assistant, the medical assistant clearly did not write it down, and Dr. Hill-Daniel never inquired further.13

On the basis of the credible expert testimony, the Court therefore finds that the national standard of care required Dr. Hill-Daniel to consider breast cancer as part of her differential diagnosis for the plaintiff on December 3, 2009.

Yet Dr. Hill-Daniel testified that breast cancer was not on her differential diagnosis. Trial Tr. ECF No. 58 at 15:1-25, 55:11-:14 ("A: And you knew [that breast cancer in women under thirty is most likely diagnosed by detection of a palpable mass] on December 3, 2009, yet with this knowledge, you did not have breast cancer on your differential diagnosis, correct? A: Nothing in the — correct."). In fact, it is clear that Dr. Hill-Daniel determined at the December 2009 visit that the plaintiff's condition was decidedly not breast cancer. Dr. Hill-Daniel testified that she reassured the plaintiff that her concerns were benign — meaning not cancer. Id. at 13:21-:22 (Dr. Hill-Daniel's testimony that she reassured the plaintiff that her concerns were "benign"); id. at 63:9-:11 (Dr. Hill-Daniel's testimony agreeing that "the term benign refers to a condition, tumor or growth that is not cancerous"). Dr. Hill-Daniel's reassurance of the plaintiff and clear minimization of the plaintiff's own view about the need for a mammogram or some form of diagnostic testing clearly colored the urgency with which the future treatment of the plaintiff by this physician and Unity subsequently unfolded. When the Court asked Dr. Hill-Daniel why she did not tell the plaintiff to follow up within a specified time period, Dr. Hill-Daniel responded: "At the time, I felt this was a self-limiting process, meaning that I thought her breast pain, her tenderness, would spontaneously resolve on her own." Id. at 17:14-:19.14

The plaintiff's experts next testified that because Dr. Hill-Daniel was required to have breast cancer on the differential diagnosis for the plaintiff, she was also required to take steps to rule it out. Dr. Sutherland was the only expert who opined that based on the plaintiff's presentation as a twenty-four year old non-lactating woman with noncyclic pain and no suspicious findings on examination, the national standard of care required Dr. Hill-Daniel to refer her for a diagnostic ultrasound. Trial Tr. ECF No. 69 at 42:1-:7. He based his opinion on an algorithm published by the California Department of Health as a guideline for primary care physicians in 2005, and incorporated into the Guam Breast and Cervical Cancer Early Detection Program Screening Guidelines for Breast Cancer. Pl.'s Exs. 67, 106; Trial Tr. ECF No. 69 at 43:23-44:3. Although the defendant attacks this study as inapplicable to a twenty-four year old woman, there is no indication that the algorithm is dependent on age. Moreover, the defendant's experts did not present any competing study or protocol based in the scientific literature that would suggest that whether to order diagnostic imaging depends on the patient's age.15

Dr. Sutherland ultimately testified that at the very least, the national standard of care required Dr. Hill-Daniel to schedule the plaintiff for a return visit in the next thirty to sixty days to see whether or not her complaints of noncyclic pain and knots remained and to repeat the breast examination. Trial Tr. ECF No. 69 at 37:19-:24. Dr. Margo also testified that the next step required by the national standard of care was to schedule an appointment for the plaintiff to follow-up about her breast complaints in the next four to six weeks. Trial Tr. ECF No. 70 at 61:15-:23. Even the defendant's expert, Dr. Koch, opined that Dr. Hill-Daniel had "an obligation to say, if your symptoms do not go away ... with the interventions that I suggested, please come back to be reevaluated." Trial Tr. ECF No. 73 at 127:17-:21. Dr. Hill-Daniel took no such steps to further assess whether the plaintiff had breast cancer. Rather, she reassured the plaintiff of the benign nature of her concern, told her that no imaging was warranted, recommended that she change her bra, and prescribed her a strong dose of Ibuprofen.

While there is no dispute that Dr. Hill-Daniel did not schedule, or insist on the scheduling of, a follow-up appointment for the plaintiff in the next two months, there is some dispute over what Dr. Hill-Daniel did tell the plaintiff regarding follow-up, if anything. Dr. Hill-Daniel testified that she recalled telling 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. The plaintiff, on the other hand, testified that Dr. Hill-Daniel never mentioned any follow-up to her at all. Trial Tr. ECF No. 70 at 20:22-21:7. Under the heading of "follow-up," the progress note contains only the nonspecific notation, "PRN," — meaning "as needed." Pl.'s Ex. 1, at 1066; Def.'s Ex. 1, at 8; Trial Tr. ECF No. 58 at 16:8-:9 (Dr. Hill-Daniel's testimony that PRN stands for "as needed"). Accordingly, the Court finds the plaintiff's testimony to be credible and finds that Dr. Hill-Daniel did not adequately explain to the plaintiff when, or even if, she should follow up.

Whatever Dr. Hill-Daniel told the plaintiff about follow-up, there is no question that she unwarrantedly told the plaintiff that her symptoms were not cause for concern. Dr. Hill-Daniel testified that she told the plaintiff that her symptoms were benign, i.e. non-cancerous, Pl.'s Ex. 1, at 1013 & Def.'s Ex. 1, at 8 (progress note for December 3, 2009 visit, stating under "treatment" that "Pt reassured about benign nature iof [sic] her concern"); see also Trial Tr. ECF No. 58 at 63:9-:11 (Dr. Hill-Daniel's testimony agreeing that "the term benign refers to a condition, tumor or growth that is not cancerous"), which, according to Dr. Margo, Dr. Hill-Daniel did not have enough information to do. Trial Tr. ECF No. 70 at 60:10-:14. The problem with making such an unsubstantiated assurance, according to Dr. Margo, is the patient will stop paying attention to the symptoms or will not bring them up to the physician again in the future because she thinks that the problem is benign. Id. at 61:3-:11. Dr. Margo explained that Dr. Hill-Daniel "didn't leave the door open for something other than a benign problem." Id. at 60:16-:19. Even if Dr. Hill-Daniel had told the plaintiff during her December 2009 visit that she should follow-up if her symptoms persisted, she also conveyed the clear indication that the plaintiff should have no concern about any danger from the persistence of her symptoms. The defendant's expert, Dr. Koch, conceded to the Court that the only reason a patient would follow-up about persistent symptoms after being assured of their benign nature would be for further pain management. Trial Tr. ECF No. 73 at 91:20-92:5 (suggesting other medical modalities for pain management that the doctor could have prescribed if the patient were to return complaining that her symptoms were persisting).16

The defendant's experts, Dr. Bethea and Dr. Koch, testified that in their opinions the national standard of care did not require Dr. Hill-Daniel to schedule a follow-up appointment or order diagnostic imaging. As with their opinions about the differential diagnosis, both of them relied primarily on the plaintiff's age and the fact that her complaints of pain and lumpiness were "bilateral" or occurring in both breasts. Trial Tr. ECF No. 73 at 32:8-:12 ("Twenty-four year-old with bilateral benign fibrocystic findings, it would be inappropriate to list cancer as a very real concern simply because it would not be a very real concern. It would be a very rare occurrence."); id. at 86:19-87:7 (explaining that the national standard of care does not require a referral for imaging when "if you listen to the patient, you listen to what she has to say, she's talking about a bilateral issue. She is talking about the breasts being uncomfortable, and she feels that they are lumpy, and you do a physical examination on the patient, and you don't find anything there"); id. at 89:8-:15 ("[S]he took in the chief complaint; she did a physical exam; she made an assessment, and she gave the patient suggestions for management, and then she invited the patient to come back should the symptoms continue. It was a perfectly reasonable thing to do in a twenty-four-year-old woman complaining of bilateral breast pain and lumpiness in her breasts."). The Court discounts the value of these opinions for the same reasons the defendant's experts' opinions regarding the differential diagnosis are discounted: not only is the age of the patient not dispositive as to whether a breast "knot" is benign, the plaintiff's testimony that she complained specifically about a knot in her left breast is credible. Moreover, the defense experts did not address the fact that the plaintiff's breast complaints were noncyclical. Thus, the grounds on which the defense experts based their opinion about the defendant's compliance with the national standard of care at the December 2009 visit in terms of diagnosis, follow-up care, and treatment are not predicated on the material factual findings in this case. This faulty premise also invalidates Dr. Bethea's testimony that if a physician were to schedule a follow-up with every patient presenting with the plaintiff's symptoms, it would "flood the system unnecessarily with essentially zero return on your effort." Trial Tr. ECF No. 73 at 27:1-:4.

Accordingly, the Court finds that Dr. Hill-Daniel breached the national standard of care on December 3, 2009 by, at the very least, not scheduling a follow-up visit for the plaintiff in thirty to sixty days to reassess the plaintiff's complaints of bilateral breast pain and a knot in her left breast, and to repeat a breast examination.

2. August-October 2010

The plaintiff next argues that Dr. Hill Daniel and Unity breached the national standard of care by delaying for more than two months the plaintiff's appointment for a mammogram referral after the plaintiff first attempted to make the appointment. The plaintiff testified that, after her visit to the emergency room at Fort Washington Hospital where she was advised that obtaining a mammogram was "very important,"17 she called Unity the very next day and asked the receptionist to schedule 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 first given an appointment date of September 9, 2010, but Unity cancelled that appointment and another rescheduled appointment for September 24, 2011 before the plaintiff finally saw Dr. Hill-Daniel on October 18, 2010. Pl.'s Ex. 33.

The plaintiff's expert, Dr. Sutherland, testified that when Unity cancelled the plaintiff's September 9, 2010, appointment, the standard of care required Unity to reschedule it "as quickly as possible, and I think certainly within a week at the maximum." Trial Tr. ECF No. 69 at 51:16-:18. He opined that if it were not possible for Dr. Hill-Daniel to see her during that time, she should have been scheduled to see one of Dr. Hill-Daniel's colleagues. Id. at 51:18-22. As to the second time the appointment was rescheduled, Dr. Sutherland opined that rescheduling the appointment as quickly as possible was particularly imperative because the plaintiff had already been waiting to be seen for several extra weeks. Id. at 52:5-:9.

Dr. Sutherland based his opinion on "the fact that the reason for that request [for a mammogram] was the fact that a mass had been found at Fort Washington and she was told to proceed to get — see her primary care physician for further testing." Id. at 51:2-:7. There is no evidence in the record, however, that the plaintiff actually told the receptionist at the time that she called to make her appointment, or during the period of time over which her appointments were rescheduled, about her experience at Fort Washington, the mass they palpated in her left breast, or their recommendation that it was "very important" that she follow up with her primary care physician. As described above, the plaintiff testified only that she asked for the first available appointment because she needed a mammogram. Trial Tr. ECF No. 55 at 92:1-:13.

The Court is troubled that the receptionist did not inquire into the basis for the urgency that the plaintiff expressed in seeing Dr. Hill-Daniel, particularly in the face of her explicit request for a mammogram referral, and with the length of time that that it took for Unity to fit the plaintiff in to be seen by a physician. While clerical personnel certainly are not expected to have the same level of expertise as other medical professionals, personnel responsible for cancelling and re-scheduling appointments at a medical clinic should have sufficient training to inquire into a patient's perspective or understanding regarding the timing needs for an doctor's visit, or to confer with a physician when the schedule does not permit an appointment within the time-frame the patient believed is required. Instead, the Unity scheduling personnel, with whom the plaintiff spoke, approached the making of an appointment as a purely ministerial task without any medical implications, and this is simply not the case when the context is a medical clinic providing primary care.

Moreover, the defendant's assertion that the plaintiff should have made an appointment with another doctor or visited the clinic as a "walk-in" is simply not persuasive. Def.'s Concls. at 11-12. The doctor at the Fort Washington Hospital Emergency Room specifically told the plaintiff to "go back to your doctor." Trial Tr. ECF No. 55 at 90:22-:24. At the time, Dr. Hill-Daniel was the plaintiff's primary care physician and she was the doctor that the plaintiff had initially gone to with her breast complaints. The defendant also presented no evidence that the plaintiff was advised by anyone at Unity at the time of the cancellation of her two appointments with her primary care physician, or at any other time, that she had the option of scheduling an appointment with another doctor, or that she could continue to come in for walk-in visits after she had been assigned a primary care physician. Although the plaintiff had visited Unity as a walk-in patient in the past, all of the records of her walk-in visits are from before Dr. Hill-Daniel became assigned as the plaintiff's primary care physician. Def.'s Ex. 1, at 14-16; see also Trial Tr. ECF No. 72 at 82:5-:10.

Yet, because the plaintiff has not provided any expert opinion regarding the national standard of care applicable to medical clinics for the re-scheduling of cancelled doctor visits in light of the facts as presented in this case, the Court cannot find that the plaintiff has proven by a preponderance of the evidence that the delay attendant to the cancellation and rescheduling of two appointments that the plaintiff had with Dr. Hill-Daniel in September and October, 2011 constituted a breach of the national standard of care.

3. October 18, 2010-March 8, 2011

Finally, the plaintiff asserts that Dr. Hill-Daniel was negligent in permitting almost five months to pass between the October 18, 2010 appointment and her March 8, 2011 breast cancer diagnosis.

There is no dispute that Dr. Hill-Daniel examined the plaintiff on October 18, 2010, and palpated "multiple small mobile nodules" in her left breast and lymph nodes in her left axilla. Pl.'s Ex. 1, at 1060; Def.'s Ex. 1, at 8. While all of the experts agreed that Dr. Hill-Daniel ordered the correct tests in a permissible progression, both of the plaintiff's family medicine experts testified that under these circumstances, the national standard of care required a quick evaluation through this progression of imaging and biopsy to determine whether the abnormalities were breast cancer. See Trial Tr. ECF No. 70 at 81:15-:17 (Dr. Margo's testimony that the national standard of care required "very quick evaluation with imaging and referral to a specialist to take care of it if it turns out, in fact, to be breast cancer"); Trial Tr. ECF No. 69 at 53:16-:18 ("In light of those findings with the history, it was Dr. Hill-Daniel's responsibility to expedite diagnostic testing as soon as possible."). Both of the plaintiff's experts also testified that the national standard of care required that the plaintiff's breast cancer be diagnosed in no more than two to three weeks in total. Trial Tr. ECF No. 70 at 82:10-:25 (Dr. Margo); Trial Tr. ECF No. 69 at 54:19-55:5 (Dr. Sutherland). Within this overarching timeframe, Dr. Sutherland testified that the national standard of care required that the diagnostic ultrasound be done within a week of the October visit, Trial Tr. ECF No. 69 at 54:2-:12, and Dr. Margo testified that the required time was two weeks, Trial Tr. ECF No. 70 at 82:10-82:25.

The defendant's expert, Dr. Koch, testified that the national standard of care was satisfied by the physician prescribing a six-week follow-up period during which the patient should get the ultrasound. When pressed on the appropriate timeframe for obtaining diagnostic tests, however, Dr. Koch expressed significant doubt about his qualifications to make any judgment about how long diagnostic measures for breast cancer should take. Trial Tr. ECF No. 57 at 11:16-:22 ("I think an oncologist could speak to that much better than I.... I would probably let an oncologist, you know, speak [to] that."). The Court therefore does not credit his judgment about what the standard of care requires with respect to the diagnostic process for breast cancer.

The defendant's expert, Dr. Bethea, testified that Dr. Hill-Daniel's actions did not violate the national standard of care, but said, in response to questioning by the Court, that Dr. Hill-Daniel's detection of lymph node involvement was a "gamechanger," and that once that happened, it was not appropriate to wait six weeks before an ultrasound was performed. Trial Tr. ECF No. 73 at 40:24-41:2. He then attempted to backpedal by redefining the national standard of care as dependent on the practical circumstances under which the care is delivered — in particular, the financial circumstances of the medical institution and the type of insurance that the patient has. See id. at 44:4-47:11. Finally, he confused the matter by opining that "[t]he time frame does not dictate the compliance with the standard of care. It dictates compliance with best practice." Id. at 49:6-:9. The law in this jurisdiction, however, establishes that the conduct of a health care provider, whether a physician or institution, should be measured against the national standard of care, which in turn depends on the course that is followed nationally by physicians or institutions in the same field as the defendant. Washington v. Wash. Hosp. Ctr., 579 A.2d 177, 181 (D.C.1990) (defining national standard of care for an institution as reliant on what a reasonably prudent institution, at the time of the plaintiff's injury, and according to national standards, would have done). Moreover, the standard must be established through "reference to a published standard, [discussion] of the described course of treatment with practitioners outside the District ... at seminars or conventions, or through presentation of relevant data." Strickland v. Pinder, 899 A.2d 770, 770 (D.C.2006); see also Travers v. District of Columbia, 672 A.2d 566, 568 (D.C.1996) ("There must be, then, evidence that a particular course of treatment is followed nationally."). Dr. Bethea's opinion that it was appropriate for Dr. Hill-Daniel to prescribe a six-week follow up period is not based on a national standard for family care physicians or for institutions that offer primary care services to patients. Rather, it seems to be based on his opinion that different standards apply depending on the institutional context in which treatment is delivered. See, e.g., Trial Tr. ECF No. 73 at 46:19-:23 ("These days, unfortunately, doctors lose control of the situation in big medical centers, such as where this occurred. They don't lose control of it in a practice like mine. So it's two entirely different circumstances."). That understanding does not comport with the law in this jurisdiction.

Assessing whether Dr. Hill-Daniel satisfied any of the expert witness's constructions of the national standard of care, the Court must consider that Dr. Hill Daniel did nothing to expedite any of the tests that she ordered for the plaintiff, and that there is no evidence that she or any of her staff explained to the plaintiff the appropriate timeframe for obtaining the tests or the reason why it was important to obtain them quickly. As to the ultrasound, Dr. Hill-Daniel wrote a referral and sent it to Ms. Jones for processing. Although Dr. Hill-Daniel asked Ms. Jones to expedite the insurance authorization process, the plaintiff was not notified that Dr. Hill-Daniel had asked Ms. Jones to expedite the referral, and Dr. Hill-Daniel did not direct Ms. Jones to discuss the timing of the ultrasound with the plaintiff. Dr. Hill-Daniel testified that she "basically stressed the importance of her to get the study done and come back to me for the results so we could figure out what else we needed to do," Trial Tr. ECF No. 58 at 29:1-:3, but this nonspecific recollection does not speak to the timeframe she used or the explanation she gave for why "figure[ing] out what else we needed to do" was important. Moreover, there is no notation on the progress note that Dr. Hill-Daniel actually told the plaintiff the importance of having the procedure done quickly, and the plaintiff testified that Dr. Hill-Daniel did not give her any indication of how quickly the procedure should be done. Trial Tr. ECF No. 55 at 97:4-:6 ("Q: [D]id Dr. Hill-Daniel tell you about how quickly you were supposed to have the ultrasound performed? A: She didn't give me no discussion about the ultrasound."). Dr. Hill-Daniel also testified on cross-examination that she did not remember specifically telling the plaintiff that she should get an appointment for the ultrasound within one to two weeks. Trial Tr. ECF No. 58 at 96:25-97:3. Rather, the notation in the progress note says that the prescribed follow-up is six weeks, and Dr. Hill-Daniel testified that "I felt six weeks was enough time for her to get the referral, make her appointments, get the exam done and report back to me." Id. at 28:24-29:5.

Thus, reviewing the evidence as a whole shows that while Dr. Hill-Daniel may have told the plaintiff that the ultrasound was important to diagnose her symptoms, she did not tell the plaintiff that she needed to get it done quickly or explain that the reason it was important was to rule out the possibility that she had breast cancer. Relaying the urgency of having the test performed quickly would have been particularly important in this case, given that Dr. Hill-Daniel had assured the plaintiff that her concerns were benign and could be treated with a change in her bra, only ten months earlier.

Moreover, although it is not clear that Dr. Hill-Daniel told the plaintiff to follow-up at all, the best-case scenario is that Dr. Hill-Daniel told the plaintiff that the follow-up time was six-weeks. This is far longer than the one to two-week timeframe that the plaintiff's experts testified that the national standard of care required. Even the defendant's expert, Dr. Bethea, testified that Dr. Hill-Daniel's detection of lymph node involvement was a "game changer," and that once that happened, it was not appropriate to wait six weeks before an ultrasound was performed. Trial Tr. ECF No. 73 at 39:23-41:2. The defendant's other family medicine expert, Dr. Koch, who asserted that Dr. Hill-Daniel was within the standard of care by giving the plaintiff a six-week follow-up for the October 18, 2011 appointment, also testified that "there's certainly an obligation on a physician's part to impart some need to expedite things." Id. at 113:2-:3.

More troubling is that on November 3, 2011 — more than two weeks after the October 18, 2011 visit — Dr. Hill-Daniel became aware that the plaintiff had gone to Providence Hospital to have the ultrasound done, and that she was unable to have the procedure because of an error that Dr. Hill-Daniel herself had made with the IDC-9 code on the plaintiff's referral form. When Dr. Hill-Daniel corrected the code, she was aware that the ultrasound technician had already left for the day and, thus, that the plaintiff would have to reschedule the ultrasound appointment. Nonetheless, Dr. Hill-Daniel still did nothing to ensure that the plaintiff would be able to have the ultrasound done quickly. She did not call the radiologist at Providence Hospital or direct her staff to call. She did not even call the plaintiff to make sure she was aware that she should try to have the procedure rescheduled quickly. Dr. Sutherland testified that as the physician responsible for the management of the patient, Dr. Hill-Daniel was required to take a leadership role and/or delegate to her staff to make sure that the ultrasound was done within a week. Trial Tr. ECF No. 69 at 55:14-57:7. Yet, two weeks after she wrote the referral, Dr. Hill-Daniel knew that the plaintiff still had not been able to have the ultrasound and Dr. Hill-Daniel did nothing.

Dr. Hill-Daniel finally received the ultrasound report on December 27, 2011, with the alarming finding that "a more aggressive lesion cannot be excluded." Pl.'s Ex. 13, at 1; Def.'s Ex. 5, at 1. Dr. Hill-Daniel also saw the radiologist's recommendation that she refer the plaintiff for a mammogram. At this point, Dr. Hill-Daniel had to be aware that it had taken the plaintiff two months to have the diagnostic ultrasound. In addition, Dr. Hill-Daniel knew that the abnormal result from the ultrasound meant that the plaintiff potentially had breast cancer. Trial Tr. ECF No. 58 at 98:3-:9 ("Q: You knew [the plaintiff] potentially might have cancer. And you knew now that you had an abnormal result from an ultrasound, right? A: Yes. Q: And you didn't tell her anything about how quickly she should get the mammogram? A: No, I can't recall speaking to her."). Yet, Dr. Hill-Daniel still did nothing to ensure that the plaintiff received a quick diagnosis or at least was aware of the urgency of the situation. Dr. Hill-Daniel did not even contact the plaintiff herself, let alone take the time to explain to the plaintiff that the mammogram needed to be done quickly and why. Trial Tr. ECF No. 73 at 113:2-:3. Rather, Dr. Hill-Daniel generated a referral for a mammogram of the left breast as directed by the radiologist, sent it to Ms. Jones for authorization, and asked Ms. Jones to call the plaintiff to pick up the referral form and schedule an appointment. Trial Tr. ECF No. 58 at 41:11-:15. In fact, while Dr. Hill-Daniel marked the referral for the mammogram as urgent and sent it to Ms. Jones electronically on December 30, 2011 in order to expedite the insurance authorization process, she did not even take care to discover that Ms. Jones was out of the office and would not return — or therefore process the referral — for an entire week. As a result, the plaintiff's diagnosis was delayed further.

The plaintiff finally had the mammogram, which she had originally requested in December, 2009 and, again, in September, 2010 and, again, in October, 2010, performed on February 9, 2011. After receiving a call from the radiologist at Providence Hospital regarding the abnormal results of the plaintiff's mammogram, Dr. Hill-Daniel contacted the plaintiff on February 10, 2011. Dr. Hill-Daniel told the plaintiff during this telephone call that the plaintiff needed to be seen by a surgeon for a biopsy, but she still did not communicate the urgency of the situation to her or the reason for the biopsy. Trial Tr. ECF No. 58 at 111:8-112:1. In fact, Dr. Hill-Daniel testified that she would not have used the word cancer with the plaintiff because you "don't have that diagnosis until the biopsy is done." Id. at 111:23-:25. Despite knowing how long the diagnostic process had already taken, and despite having admitting privileges at Providence Hospital, Dr. Hill-Daniel did not call the surgeon to whom she referred the plaintiff in order to expedite the biopsy. See id. 116:21-:25 (Dr. Hill-Daniel acknowledged that it was more likely that the test would have been scheduled quicker if she had called Providence Hospital than if the plaintiff called). The biopsy was not performed until March 8, 2011 — nearly a month after Dr. Hill-Daniel first learned about the mammogram results, and nearly five months after she had palpated the nodules in the plaintiff's left breast and the lymph nodes in the axilla.

Defendant cites Forman v. Pillsbury, 753 F.Supp. 14, 19 (D.D.C.1990), for the proposition that a rule requiring a physician to take significant measures to ensure that a properly informed patient follows the doctor's instructions would be unworkable and overly paternalistic. Def.'s Concls. at 14. That case is distinguishable. In Forman, doctors at Mt. Sinai Hospital had prescribed a medication for the patient and, aware that the medication could suppress white blood cell production, they recommended in a clear communication to the patient that he follow a schedule to closely monitor his white blood cell count while on the medication. Id. at 15-17. The patient failed to adhere to the schedule, however, and while on the medication, the patient's white blood cell count dropped, causing him to suffer coronary arrest and die. Id. at 16. His mother sued his physician for medical malpractice, arguing that the monitoring schedule represented the standard of care and that her son's physicians were required to abide by it. Id. The only allegation of negligence at trial was the doctor's failure to monitor the patient's white blood cell count on one particular occasion. The court first found that the plaintiff had not proved that the failure to monitor on that one occasion was the proximate cause of the patient's harm. Id. at 18. It next found that even if there were sufficient evidence to support a finding of proximate cause, the plaintiff had not presented sufficient expert testimony to support her theory of the standard of care. Id. The court stated that the plaintiff's expert discounted the fact that the plaintiff "was well aware of the schedule and the importance of monitoring the patient's white blood count" and that nonetheless, the plaintiff failed to take the patient to the doctor consistently. Id. at 19. The court rejected the expert's testimony that a doctor has "the duty to make sure that a patient comes to the office for treatment," holding instead that the "defendant's obligation consisted of informing plaintiff of the need for monitoring and performing the tests with plaintiff's cooperation." Id.

This Court agrees that the patient must take responsibility for following a doctor's orders, but the problem here is that the patient was not given the information that she needed and to which the national standard of care entitled her, in order to obtain the appropriate level of care. Dr. Hill-Daniel failed to express the urgency with which the plaintiff needed to have the diagnostic tests performed and failed to explain to her the appropriate time frame to schedule the tests. Moreover, after discovering that her own error delayed the plaintiff's ability to obtain the medically necessary tests, Dr. Hill-Daniel still did nothing to expedite the timeframe or even to impart to the plaintiff that the timeframe should be expedited. With clear knowledge of the length of time it took for the plaintiff to have the ultrasound performed, Dr. Hill-Daniel still took no steps to assist the plaintiff in obtaining the follow-on mammogram and the biopsy in a more expedited fashion or even to explain to the plaintiff that it was important that she do so. Unlike in Forman, there is no evidence here that the plaintiff was "well aware" of the appropriate schedule for obtaining her diagnostic tests or why it was important that they be done quickly.

At a minimum, all four experts ultimately agreed that the national standard of care required Dr. Hill-Daniel to impart some need to expedite testing once she palpated the nodules in the plaintiff's left breast and lymph nodes and to not impede the plaintiff's ability to do so.18 Dr. Hill-Daniel failed to do that. Therefore, the plaintiff has successfully proven that Dr. Hill-Daniel's actions — or inaction — breached the national standard of care.

C. THE TREATING PHYSICIAN'S BREACH OF THE NATIONAL STANDARD OF CARE WAS THE PROXIMATE CAUSE OF THE PLAINTIFF'S PROGRESSION FROM STAGE I TO STAGE IV CANCER.

The Court also finds that the plaintiff has proven by a preponderance of the evidence that Dr. Hill-Daniel's breach of the national standard of care caused her breast cancer to progress from a Stage I curable disease to the Stage IV incurable disease that she now faces.

"It is a bedrock rule of ... tort... law that a defendant is only liable for harms he proximately caused." United States v. Monzel, 641 F.3d 528, 535 (D.C.Cir.2011) (citing RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 cmt. a (2010) (calling proximate cause a "requirement[ ] for liability in tort")); see also McGaughey v. District of Columbia, 684 F.3d 1355, 1358 (D.C.Cir.2012) ("A plaintiff claiming negligence must prove not only that the defendant owed her a duty of care that was breached but that the breach proximately caused her injury. Failure to show proximate cause is fatal to a negligence claim.") (internal citations omitted); W. Page Keeton et al., PROSSER AND KEETON ON THE LAW OF TORTS § 41, at 263 (5th ed. 1984) ("An essential element of the plaintiff's cause of action for negligence, or ... any other tort, is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. This connection usually is dealt with by the courts in terms of what is called `proximate cause'....")). To show proximate cause, a plaintiff must proffer expert testimony "based on a reasonable degree of medical certainty, that the defendant's negligence is more likely than anything else to have been the cause (or a cause) of the plaintiff's injuries." Giordano v. Sherwood, 968 A.2d 494, 502 (D.C.2009) (quoting Psychiatric Inst. of Wash. v. Allen, 509 A.2d 619, 624 (D.C. 1986)). "The `more likely than not' standard is firmly embedded in our law." Grant v. Am. Nat'l Red Cross, 745 A.2d 316, 319 (D.C.2000).

The parties do not grapple with the application of this standard to a case, like this one, where the plaintiff claims that the physician's negligence was her failure to diagnose an existing condition that, when left untreated, would progress to an incurable and deadly disease. In Flores-Hernandez v. United States, 910 F.Supp.2d 64 (D.D.C.2012), another judge on this Court addressed application of the causation standard to a physician who was negligent in failing to diagnose the plaintiff's cancer at an earlier stage. The plaintiff alleged that the physician negligently delayed referring her for diagnostic gynecological testing for cervical cancer and that, had the doctor referred her for testing earlier, specialists would have diagnosed and completely treated her condition as a pre-malignancy or early stage cancer, rather than Stage IVA cervical cancer, as it was ultimately diagnosed two years later. Id. After finding that the plaintiff had sustained her burden on negligence, the court characterized the plaintiff's burden on causation as proving that if the plaintiff had been referred to a gynecologist sooner, it was more likely than not that the course of treatment she received would have led to the treatment and eradication of her condition sooner, before it advanced to stage IVA. See id. at 77-78.19

Similarly here, the plaintiff bears the burden of showing that if Dr. Hill-Daniel had satisfied the national standard of care, it is more likely than not that the course of treatment she would have received would have led to the treatment and cure of her breast cancer. To determine whether the plaintiff has satisfied that burden, the Court will evaluate the sufficiency of the plaintiff's expert testimony to show, based on a reasonable degree of medical certainty, first, that Dr. Hill-Daniel's satisfaction of the standard of care would have led to a diagnosis when the cancer was at an earlier stage, and next, that if the plaintiff's cancer had been diagnosed at that earlier stage, is it more likely than not that the course of treatment she would have received would have led to the treatment and eradication of her cancer.

1. A Follow-up Examination In Compliance With the Standard of Care Within Thirty to Sixty Days after the Plaintiff's December 3, 2009 visit Would More Likely Than Not Have Produced A Cancer Diagnosis While the Condition was Stage I.

Relying on the opinions of her experts Dr. Tucker and Dr. Pushkas, the plaintiff argues that if Dr. Hill-Daniel had satisfied the standard of care on December 3, 2009 by setting up an appointment for the plaintiff to return after thirty to sixty days in order to reevaluate her breast pain and knots, instead of reassuring her during that visit that her symptoms were benign, the plaintiff's breast cancer was more likely to have been diagnosed while it was Stage I. Notably, the defendant has not contested that diagnostic imaging would have led to a breast cancer diagnosis, even as early as December 2009. Instead, the defendant argues, based on testimony from its expert Dr. Feigert, that the plaintiff's breast cancer was already at Stage III-B or even Stage IV at the time of her first appointment with Dr. Hill-Daniel expressing concerns about her breasts and requesting a mammogram. Thus, according to the defendant, even if Dr. Hill-Daniel breached the standard of care in her treatment of the plaintiff in December 2009, this was not the proximate cause of her Stage IV breast cancer. For the reasons explained below, Dr. Feigert's opinion is simply not persuasive. The Court concludes that the plaintiff has carried her burden of showing that had Dr. Hill-Daniel directed the plaintiff to return for another visit in thirty to sixty days after December 3, 2009, it is more likely than not that her breast cancer would have been detected while it was Stage I.

To explain this conclusion, the Court will first address the expert testimony regarding when the plaintiff's cancer would have been diagnosed if Dr. Hill-Daniel had satisfied the standard of care, and it will then address the expert testimony concerning the stage of the cancer at that point. See Flores-Hernandez v. United States, 910 F.Supp.2d at 77-78 (stating that "[t]he question is not solely whether [the plaintiff] already had cancer" at the time of the alleged negligence, but whether if the physician had complied with the national standard of care, "the course of treatment she received would have led to the treatment and eradication of her condition sooner, before it advanced to Stage IVA").

a) Reevaluation of the Plaintiff Within Thirty to Sixty Days of The December 3, 2009 visit Would Likely Have Resulted in Diagnosis of Her Cancer Between January and July 2010.

As already pointed out, the defendant presented no expert opinion that would dispute the plaintiff's position that her cancer would have been diagnosed earlier had Dr. Hill-Daniel satisfied the standard of care at the December 3, 2009 visit. While conceding this point, the defendant relies upon the testimony of its expert Dr. Feigert that by December 2009, the plaintiff's cancer was already at such an advanced stage that it would have been incurable no matter what Dr. Hill-Daniel had done at that appointment. Nonetheless, since the plaintiff bears the burden of proof on all aspects of her claim, the Court must still assess the sufficiency of the plaintiff's evidence on this question, and the Court finds that the evidence demonstrates to a reasonable degree of medical certainty that had Dr. Hill-Daniel scheduled an appointment for the plaintiff to return for re-evaluation of her breast complaints within thirty to sixty days after December 3, 2009, the plaintiff's cancer would have been diagnosed sometime between January and July 2010.

First, it is clear to the Court that had Dr. Hill-Daniel not told the plaintiff at the December 3, 2009 visit that her breast concerns were benign, but instead scheduled a follow-up appointment for the plaintiff in order to rule out the possibility of breast cancer, the plaintiff would have attended the follow-up appointment and reported that the knot in her breast was still present. The evidence at trial showed that the plaintiff attended every scheduled appointment with her health care providers concerning her breast complaints. Moreover, the plaintiff raised the concern about her breast in the first instance, and she obviously thought it was important enough to schedule and attend the initial visit, so the Court has no doubt that she would have attended the follow-up visit. In addition, the plaintiff testified that in January 2010, the knot in her left breast remained about the same as it had been in December. Trial Tr. ECF No. 70 at 20:5-:9 ("Q: And the lumps in your breasts were still there; is that correct? A: The knot in my left breast? Q: Were still there; isn't that correct? Q: Yeah. It was about the same."). Even by April 30, 2010, the knot in her left breast had not changed. Trial Tr. ECF No. 55 at 83:24-:25 ("Q: Was the knot still present? A: It was the same thing as from the first visit in 2009.").

In addition, Dr. Sutherland testified that if Dr. Hill-Daniel had conducted another breast examination thirty to sixty days after the December 3, 2009 appointment, Dr. Hill-Daniel would have felt the mass in the plaintiff's left breast. Trial Tr. ECF No. 69 at 50:10-:11 ("[M]y opinion is that Dr. Hill-Daniel would have felt the mass at that point[.]"); see also Trial Tr. ECF No. 70 at 78:10-:13 (Dr. Margo's testimony that Dr. Hill-Daniel "well may have felt something [abnormal in the plaintiff's left breast] in January and/or April [2010]" given the outcome). The opinion of Dr. Feigert, the defendant's expert, that by that time the plaintiff's cancer was already Stage III-B or Stage IV, only bolsters the credibility of Dr. Sutherland's opinion that the knot would have been palpable to Dr. Hill-Daniel in January or February of 2010.

Regardless of whether Dr. Hill-Daniel would have felt the knot at the follow-up visit, the national standard of care would have required Dr. Hill-Daniel to order a diagnostic ultrasound merely on the grounds that the plaintiff's symptoms had not changed with her menstrual cycle. Id. at 77:4-:7 (Dr. Margo's testimony that the reason that the patient should be followed up in four to six weeks is to check whether the symptoms are actually cyclical in nature even if the patient told the physician that they were not cyclical because "sometimes people aren't aware that there's a cyclical nature, even if there is, so that by waiting for another period, you can take that into account as well"); Trial Tr. ECF No. 69 at 46:22-47:23 (Dr. Sutherland's testimony that when a nonlactating woman presents with noncyclic breast pain, the national standard of care for a family medicine doctor requires referral for diagnostic imaging).

The plaintiff presented adequate expert testimony that diagnostic imaging would have uncovered plaintiff's cancer at that stage. Id. at 47:23-48:5 (Dr. Sutherland's testimony that if diagnostic imaging had been ordered at the December 3, 2009 visit, it is more likely than not that an ultrasound would have revealed a suspicious mass in the left breast). The defendant presented no evidence that disputed that opinion and, again, Dr. Feigert's opinion that the plaintiff's cancer was already Stage III-B or Stage IV by that point supports Dr. Sutherland's testimony that the cancer would have been visible on a diagnostic imaging test, such as an ultrasound.

Finally, it is likely that if Dr. Hill-Daniel had satisfied the national standard of care by communicating to the plaintiff the importance of the test and the appropriate timeframe for scheduling those tests, as well as encouraging, rather than impeding, her ability to have the tests performed when scheduled, the plaintiff's diagnostic process would have proceeded from ultrasound referral to ultimate diagnosis in less time than the five months it eventually took. If ultrasound referral to ultimate diagnosis had taken the mere two to three weeks that the plaintiff's experts Dr. Sutherland and Dr. Margo testified that it should have taken, the plaintiff's cancer would have been diagnosed sometime between January 18, 2010 (thirty days from December 3, 2009 plus an additional two weeks for diagnosis) and February 22, 2010 (sixty days from December 3, 2009 plus an additional three weeks for diagnosis). Even if it had taken five months to proceed from the ultrasound referral to the ultimate diagnosis, the plaintiff's cancer would have been diagnosed by July 1, 2010 (sixty days after December 3, 2009 plus an additional five months for diagnosis).

Using the most conservative estimate, the Court concludes that plaintiff's expert testimony showed to a reasonable degree of medical certainty that had Dr. Hill-Daniel satisfied the national standard of care by scheduling a follow-up visit for the plaintiff thirty to sixty days after December 3, 2009, the plaintiff's breast cancer would have been diagnosed before July 2010.

b) The Plaintiff's Cancer was Stage I Until Sometime Before July 2010 at the Earliest, When it Progressed to Stage II.

The Court must next determine whether the plaintiff's expert testimony showed, to a reasonable degree of medical certainty, that her cancer would have been less advanced than Stage IV if it had been diagnosed before July 1, 2010. At the outset, the parties do not dispute that the stage of breast cancer at diagnosis is the best predictor of prognosis. See Trial Tr. ECF No. 55 at 21:24-22:1 (Dr. Tucker); see also 3rd FOF Table ¶ 345-46 (listing as "not disputed" the facts: (1) "Most of the outcome of breast cancer is determined by the AJCC stage," and (2) "[AJCC] stage is the single most important predictor of outcome"). The experts in this case presented two completely divergent opinions on the issue of the staging of the plaintiff's cancer in December 2009 and in the few months following that visit. Specifically, the plaintiff's experts, Dr. Tucker and Dr. Pushkas, testified that the plaintiff's breast cancer was Stage I at the December 3, 2009 visit and remained Stage I until at least July 2010. The defendant's expert, Dr. Fiegert, testified that the plaintiff's breast cancer was already Stage III-B — meaning it had invaded her skin — or even more likely Stage IV — meaning that the distant metastasis beyond the breast was widespread — at the time of her December 2009 visit. The Court finds the opinions of plaintiff's expert Dr. Tucker to be entirely persuasive, and corroborated by Dr. Pushkas.20

Dr. Tucker's opinions about the progression of the plaintiff's cancer are supported in several ways. First, his opinions are straightforward and consistent. As a general matter, he founded his opinions in the scientific and medical literature, and did not overstate the conclusiveness of new and untested scientific conclusions. For example, he testified on direct examination that cancers have a relatively uniform growth rate, but that the growth rate may increase as a small tumor gets larger, especially as the tumor becomes metastatic. Trial Tr. ECF No. 55 at 31:22-32:4. This influenced his conclusion that the growth rate of the plaintiff's cancer may have increased over time. Id. at 64:1-:6. At the same time, he acknowledged that the variations were relatively small and that to try to determine how the growth rate of a particular tumor might change "would be conjecture." Id. at 32:1-:4. As a result, he used the more conservative linear growth rate to extrapolate the size of the plaintiff's tumor in December 2009 from measurements that were taken in 2011. Id. at 34:13-:21, 36:3-:8 ("[T]his would be a linear scale proportionate linear scale on calendar days from this point on."). During cross-examination, Dr. Tucker was steady and consistent, as illustrated by the following unsuccessful attempt by defense counsel to impeach him:

Id. at 64:1-:14. Moreover, Dr. Tucker grounded his opinion in the scientific literature: he cited an article from the American Journal of Roentgenology, which — despite defense counsel's skepticism, id. at 65:25-69:6, — appears to the Court to support his conclusions. Pl.'s Ex. 52, at D-46 (table summarizing the histological grade of cancer by size and pattern).

What most distinguishes Dr. Tucker's and Dr. Feigert's opinions regarding the stage of the plaintiff's cancer in December 2009, is that Dr. Tucker's opinion corresponds with the medical evidence that was presented at trial, whereas Dr. Feigert's opinion simply does not. Cf. Flores-Hernandez, 910 F.Supp.2d 64, 79 (finding expert witness's opinions to be not credible in part because they were inconsistent with the medical evidence presented at trial). First, it is undisputed that by the end of March 2011, the cancer had metastasized to approximately eight bony sites in the plaintiff's right shoulder and left scapula, which, Dr. Tucker testified, is relatively few for patients with metastatic breast cancer. Trial Tr. ECF No. 55 at 50:2-:13; see also Pl.'s Ex. 8 at 8097; 3rd FOF Table ¶ 374. There was no evidence of visceral involvement, meaning involvement of the brain, lungs, liver, or other body sites. Id. at 50:14-:15. In addition, the report from the May 12, 2011 MRI of the plaintiff's pelvis notes that the results were "suspicious for early bone metastatic disease." Pl.'s Ex. 21 at 1. The radiologist who read the MRI and wrote the report, Dr. Bowers, testified at trial that the lesions on the pelvis were not visible on the March 2011 CT scan and bone scan, which had been taken just two months earlier. Trial Tr. ECF No. 56 at 54:3-:18. He testified that in his experience, these circumstances demonstrate that the metastasis had been present for less than a year and probably less than six months.21

Second, the defendant produced no evidence that the plaintiff had any physical manifestations of metastases until October 18, 2010, when Dr. Hill-Daniel palpated possible lymph node involvement, despite the fact that multiple medical providers examined her breast complaints between December 2009 and October 2010. A brief review of this evidence, including the testimony of the plaintiff's actual treating physicians and their documented observations of the plaintiff's condition in her medical records, demonstrate the purely speculative and unsupported nature of Dr. Feigert's opinion.

Multiple experts, including the defendant's expert, Dr. Bethea, testified that the spread of cancer to the lymph nodes is often detected by palpation of lymph nodes in the axilla, or armpit. See Trial Tr. ECF No. 70 at 58:19-:22 (plaintiff's expert Dr. Margo's testimony that if a physician feels a lymph node, it is worrisome because it can indicate lymph node involvement); Trial Tr. ECF No. 73 at 24:22-:25 (defendant's expert Dr. Bethea testifying that "no lympdenopathy" — or no palpable lymph nodes — "says there's no evidence of cancer that has spread to the axilla. That's one of the areas or sites of spread of cancer."); Trial Tr. ECF No. 56 at 75:4-:5 (plaintiff's expert Dr. Pushkas testifying that "palpable lymph nodes are more likely to be involved than non-palpable lymph nodes"). Yet, the first physical evidence of lymph node involvement is Dr. Hill-Daniel's notation in the progress note for the plaintiff's October 18, 2011 visit: "palpable LN in L Axilla." Pl.'s Ex. 1, at 1024.

Similarly, plaintiff's expert Dr. Pushkas testified that metastasis to the skin often has visible signs. Trial Tr. ECF No. 56 at 80:21-81:2 (Dr. Pushkas's testimony that skin involvement is "usually visible" and can look like ulcerations or nodules on the skin or can sometimes make the skin look like the skin of an orange"). Even Dr. Feigert testified that while microscopic involvement of the skin might not show any changes to the surface of the skin, gross infiltration can cause thickening or hardening or nodules on the skin. Trial Tr. ECF No. 57 at 39:12-:19. Yet, at the plaintiff's December 3, 2009 visit to Unity, Dr. Hill-Daniel detected no palpable lymph nodes and no evidence of discoloration or hardening of the skin. Moreover, Dr. Carter, who examined the plaintiff at Howard University Hospital in May, 2010, did not make any notations about palpable lymph nodes or abnormalities in the skin despite making thorough notations about the nodules he palpated in the plaintiff's breasts. See Pl.'s Ex. 104. Likewise, the healthcare provider who examined the plaintiff at Fort Washington Hospital on August 9, 2010, did not note any palpable lymph nodes or lesions. While the defendant asserts that there is purportedly a note on the Fort Washington Medical Center record that there were "lesions" present on the plaintiff's breast, 3rd FOF Table ¶ 432(B), no such notation is apparent on the record that was admitted into evidence. Pl.'s Ex. 6. In fact, the record of the visit contains a printed portion that says, "Return to the ER if you feel worse or if you have any problems. You should especially return if you develop any of the symptoms circled below." Pl.'s Ex. 6, at 6004. Two of the options were "worse redness" and "worse swelling," but the provider circled only "redness" and "swelling," and excluded the word "worse," suggesting that the plaintiff did not have those symptoms at the time of her visit. Id. The provider also wrote "skin ulceration" under the list of symptoms that should trigger a return visit, suggesting that he or she detected no signs of skin infiltration. Id.

Finally, the plaintiff's treating oncologist, Dr. Yoo, testified that the plaintiff's bony metastases have caused her acute pain at the metastasis sites. Trial Tr. ECF No. 56 at 46:3-:8, 47:14-:18, 50:2-:25, 51:14-52:13. Even Dr. Feigert agreed that "maybe other patients don't have painful bony metastatic disease, but we know the plaintiff does." Trial Tr. ECF No. 57 at 90:22-:24 ("Sadly she does, that's correct."). Yet, for the ten month period between December 2009 and October 2010, no medical record for the plaintiff documents any complaint about bone pains, undermining Dr. Feigert's opinion that her cancer had already metastasized to such an extent as Stage IV.22

In an apparent effort to get around the lack of any medical evidence supporting his opinion, Dr. Feigert testified that in December 2009, the metastases might have been only a single malignant cell that had spread to the skin or bones, and that such a small-scale spread would not necessarily cause symptoms. Trial Tr. ECF No. 57 at 95:13-:21. He did not adequately explain, however, why the plaintiff had no symptoms associated with a metastatic breast cancer for the next ten months.23

The Court is satisfied that Dr. Tucker provided a sufficient scientific and medical foundation for his opinion that the plaintiff's breast cancer was Stage I between December 2009 and July 2010. He estimated the size of the plaintiff's tumor by extrapolating from the size as measured in three different studies — an ultrasound, CT scan, and PET CT scan — and a linear growth rate, which both parties agree best characterizes the way that cancer tumors grow, 3rd FOF Table ¶ 354. He further testified that the conclusion he reached about the small size of the tumor in December 2009 was consistent with the high growth rate of the cancer, as illustrated by the high grade on the AJCC-endorsed Nottingham grading system that the radiologist who read the plaintiff's ultrasound report assessed it to have. His opinion that the plaintiff had no nodal involvement or distant metastases on December 3, 2009, was based on the evidence that Dr. Hill-Daniel did not palpate any lymph nodes at the December 3, 2009 visit or see any evidence of spreading to the skin, and that the plaintiff did not complain of any symptoms that are associated with lymph node or distant metastasis. No physical evidence of lymph node involvement is corroborated by the low probability of lymph node involvement with a one centimeter tumor. Trial Tr. ECF No. 55 at 44:24-45:1 ("85 percent of patients even with a high grade one centimeter invasive duct cancer, don't have lymph node metastases.").

Defendant unconvincingly challenges the scientific foundation for this opinion by attacking Dr. Tucker's method of estimating the cancer's growth rate. To determine relative growth rate, Dr. Tucker relied on the tumor's overall histological grade on the AJCC-endorsed Nottingham grading system. According to Dr. Tucker, the fact that the plaintiff's cancer has the highest Nottingham grade of 3 indicates that it is a fast growing cancer. Dr. Feigert, on the other hand, testified that while the overall Nottingham grade conveys the "aggressiveness" of the cancer, which he defined as the potential to invade the blood stream and spread into the body, Trial Tr. ECF No. 57 at 48:12-:18, the growth rate is controlled by one particular component of the grade: the mitotic rate, which is the number of cells dividing at one point in time. Id. at 48:7-:8. According to Dr. Feigert, while the high Nottingham grade of the plaintiff's cancer showed that it was aggressive, its mitotic rate score of 2 out of a potential score of 3 indicated that it does not have a particularly high growth rate. Id. at 46:12-:15, 46:22-47:14. Dr. Feigert cited the low expression of a substance called Ki-67 in the plaintiff's cancer cells, which is a measure of the cancer cells' expression of synthesizing DNA, as suggesting that its growth rate was slow to average. Id. at 51:8-:19.

By contrast to Dr. Feigert's reliance on mitotic rate, Dr. Tucker provided a convincing scientific argument for why mitotic rate alone is not an accepted way of measuring growth rate. Dr. Tucker explained that many cancer cells may have defective DNA, so despite the appearance of many cells dividing, not many will survive. Thus, even if the mitotic rate is elevated, that might not correspond to tumor growth directly. Trial Tr. ECF No. 55 at 61:10-:23. Dr. Tucker's testimony was both consistent and grounded in the AJCC guidelines, which do not parse out mitotic cell division scores to evaluate a tumor's prognosis but rely on a combination of three attributes. See id. at 25:23-:25 ("It is the combination of these three attributes together in this scoring system that has the greatest correlation with growth rate."); id. at 58:15-:19 ("We do not use the individual features to determine prognosis. Prognosis is solely derived from the combined score. It is not allowed to pick out individual attributes and make judgments on outcome or growth rate or prognosis based on solitary findings."); id. at 61:10-:12 ("[A]s I said with the other attributes, we can't take the individual characteristics and draw conclusions about growth rate from them[.]"). Even Dr. Feigert admitted that in practice, pathologists utilize the overall Nottingham grade to predict tumor growth without parsing out the individual components of the system. Trial Tr. ECF No. 57 at 78:5-:18. At one point, Dr. Feigert also admitted that the grade reflects both the aggressiveness of the cancer and its growth potential. Id. at 78:5-:7.

Dr. Tucker also convincingly and unwaveringly testified that despite the label of Ki-67 as a "proliferation marker," Ki-67 expression is a prognostic indicator that tells doctors whether a patient would be likely to benefit from chemotherapy. Trial Tr. ECF No. 55 at 63:12-:25. The way that many chemotherapy drugs work is by disrupting DNA synthesis, so if the cancer shows a high Ki-67 expression, it is more likely that those drugs will work with that particular type of cancer. Id. Even Dr. Feigert admitted that the AJCC has rejected the incorporation of proliferation markers such as Ki-67 in its staging system, and instead relies on the Nottingham grading system with reliance of multiple attributes to predict growth rate. Trial Tr. ECF No. 57 at 76:11-78:6. Dr. Feigert did not produce any medical protocol that accepted Ki-67 expression as a reliable measure of growth rate in the manner that he was using it as a basis of his opinion.24

It is also worth mentioning that several aspects of Dr. Feigert's testimony cast doubt on the reliability of his opinions. First, cross-examination revealed that Dr. Feigert submitted two very different expert reports — one dated December 15, 2012, and a second dated February 15, 2013. Id. at 74:10-:16. The first report characterized the plaintiff's cancer as "very aggressive," contained no mention of Ki-67, and did not characterize the plaintiff's cancer as slow-growing. Id. at 74:19-75:14. Only in the second report — submitted a mere two months after the first — did Dr. Feigert parse the definition of an "aggressive" cancer, and opine that the plaintiff's cancer was slow-growing. Id. at 75:11-:14. In addition, there were significant inconsistencies in how Dr. Feigert characterized the extent of the plaintiff's cancer in December 2009. He acknowledged at trial that his report described "extensive progression of bony metastatic disease in December of 2009." Id. at 90:20-:21. Yet, to explain how the plaintiff remained generally free of symptoms of metastatic cancer (e.g., no lymph node involvement, no skin involvement, and no bone pains), he testified that "it reflects the fact that many patients with metastatic breast cancer don't have symptoms. Certainly now when it's microscopic." Id. at 90:16-:19. These inconsistencies trigger concern about the bases of his opinions.

The Court acknowledges that it is impossible to know with certainty the stage of the plaintiff's cancer in December 2009 because no imaging or other testing was performed at that time. The negligence standard does not require absolute certainty, however, but only a reasonable degree of certainty. Sponaugle v. Pre-Term, Inc., 411 A.2d 366, 367 (D.C.1980) ("While absolute certainty is not required, opinion evidence that is conjectural or speculative is not permitted."). Accordingly, the Court finds, based on Dr. Tucker's expert opinions, that plaintiff has proved the following to a reasonable degree of medical certainty:

Since the Court has already found that the plaintiff met her burden of showing by a preponderance of the evidence that Dr. Hill-Daniel's satisfaction of the national standard of care would have led to a diagnosis of the plaintiff's breast cancer by July 1, 2010 at the very latest, and the plaintiff has shown with a reasonable degree of medical certainty that her cancer still would have been at Stage I at that point, the Court finds that plaintiff has proven that had Dr. Hill-Daniel satisfied the national standard of care, it is more likely than not that the plaintiff's cancer would have been diagnosed at Stage I.

2. If the plaintiff's Breast Cancer Had Been Diagnosed at Stage I, the Treatment She Would Have Received Would Likely Have Cured It.

Finally, the Court concludes that plaintiff's evidence at trial demonstrated that had the plaintiff's breast cancer been diagnosed at Stage I, it is more likely than not that the treatment she would have received would have cured it. See Ferrell, 691 A.2d at 651-52 (stating that to determine whether the negligence was a "substantial factor" in causing the harm, a court must find that there was a substantial possibility of survival and that the defendant destroyed it). Plaintiff's expert Dr. Pushkas testified that overall survival for Stage I breast cancer is 98%. Trial Tr. ECF No. 56 at 77:14-:16. His opinion is grounded in statistics from the SEER Survival Monograph for breast cancer, a compilation of over 300,000 cases reported from all over the United States. Id. at 63:13-:19. Defendant does not dispute Dr. Pushkas's testimony that the SEER Survival Monograph is a reliable and authoritative source for determining the probability of survival from breast cancer in its various stages. 3rd FOF Table ¶ 390 (citing Trial Tr. ECF No. 56 at 63:5-:11). Moreover, Dr. Tucker testified that a Stage I lesion has a cure rate in the order of about 80 to 85% over five years, Trial Tr. ECF No. 55 at 11:18-:19, and that it is treatable for cure in a great majority of cases. Id. at 47:5-:9. Although Dr. Feigert testified that not all patients with Stage I disease survive, he acknowledged that "most do." Trial Tr. ECF No. 57 at 49:21-:23. He also testified that the plaintiff's cancer is subtype Luminal A, which generally carries the highest survival rates of all forms of cancer, and that it has other biological features that are characteristic of favorable prognosis. Id. at 69:1-:14. This expert testimony satisfies the Court that had the plaintiff's cancer been diagnosed and treated at Stage I, it is more likely than not that it would have been cured. Since the plaintiff's cancer was not diagnosed until it was Stage IV, however, all of the experts, as well as the plaintiff's treating oncologist, agreed that Dr. Hill-Daniel's negligence eliminated any possibility that Ms. Hill-Daniel will survive her disease. Trial Tr. ECF No. 55 at 12:1-:2 (Dr. Tucker); Trial Tr. ECF No. 56 23:9-:16 (Dr. Yoo); 3rd FOF Table ¶ 11 (listing as "not disputed" the fact that "Stage IV breast cancer is incurable").

Accordingly, the Court finds that Dr. Hill-Daniel's negligence is more likely than not to have been a proximate cause of the injuries the plaintiff has suffered and will continue to suffer as a result of having incurable breast cancer.

D. Damages

In determining the amount of damages to be awarded to the plaintiff, the Court is guided by the fundamental principle underlying the "American rule on damages" as set forth in the "seminal case" of Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931). Hill v. Republic of Iraq, 328 F.3d 680, 684 (D.C.Cir.2003). In Story Parchment Co., the Supreme Court stated:

282 U.S. at 562, 51 S.Ct. 248. The Supreme Court emphasized "the clear distinction" in the standard of proof necessary to establish a plaintiff's entitlement to damages and to assess the amount of those damages. Id. ("[T]here is a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage, and the measure of proof necessary to enable the jury to fix the amount"). While a plaintiff must prove entitlement to damages with reasonable certainty or preponderance of the evidence, proof of the amount of damages only requires a reasonable estimate. See id.; see also Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1235 (D.C.Cir.1997) (plaintiff must "prove the fact of injury with reasonable certainty, [and prove] the amount of damages ... based on a reasonable estimate"); Wood v. Day, 859 F.2d 1490, 1493 (D.C.Cir.1988) (plaintiff need only provide "some reasonable basis on which to estimate damages") (quoting Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C.1982)); Abraham v. Gendlin, 172 F.2d 881, 883 (D.C.Cir.1949)("[T]here is a clear distinction between the measure of proof necessary to establish the fact of damage and the measure of proof necessary to enable the jury to fix the amount.").

Thus, the Court's task is to "`make a just and reasonable estimate of the damage based on relevant data,'" United States ex rel. Miller v. Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 905 (D.C.Cir.2010) (quoting Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 264, 66 S.Ct. 574, 90 L.Ed. 652 (1946)). Such relevant data may include "probable and inferential as well as direct ... and positive proof." Bigelow, 327 U.S. at 264, 66 S.Ct. 574.

In setting about this task, the Court is mindful that damages "may not be determined by mere speculation or guess ... although the result may be only approximate." Hill, 328 F.3d at 684. Moreover, under District of Columbia law, "[a]n award of damages must ... avoid[ ] extravagant awards that bear little or no relation to the actual injury involved." Campbell-Crane & Assocs. v. Stamenkovic, 44 A.3d 924, 945 (D.C.2012) (internal citations omitted). In other words, the damages award "must be proportional to the harm actually suffered." Phillips v. District of Columbia, 458 A.2d 722, 726 (D.C.1983).

Finally, the D.C. Circuit has instructed that the trial court must explain the reasons for the determination of the damages award and tether these reasons to the record. See Eureka Inv. Corp. v. Chicago Title Ins. Co., 743 F.2d 932, 940 (D.C.Cir. 1984) ("[I]t is essential that the trial court give sufficient indication of how it computed the amount so that the reviewing court can determine whether it is supported by the record.") (citing Hatahley v. United States, 351 U.S. 173, 182, 76 S.Ct. 745, 100 L.Ed. 1065 (1956)); see also Safer v. Perper, 569 F.2d 87, 100 (D.C.Cir.1977) ("The measure of damages and method of computation [must] be exposed so as to inform the litigants and afford a possibility of intelligent review."). The Court now turns to this important task.

The plaintiff has requested both economic and noneconomic damages in five distinct categories: past medical expenses, future care costs, future lost earnings, loss of household services, and pain and suffering. See Pl.'s Concls. at 46-47. At the outset, the Court finds that the plaintiff has proven she is entitled to damages in all five categories. "[A] plaintiff may recover damages for past economic losses if such losses are `reasonably proved,' while a plaintiff may recover for future harm only by a reasonable certainty or preponderance of the evidence." Hill, 328 F.3d at 684. In this case, the plaintiff has "reasonably proved" that her past medical expenses have been incurred as a result of the defendant's negligence.

The other four categories of damages address future costs. When damages are sought for the "future consequences of a tort, damages are available only if such consequences are reasonably certain." Wood v. Day, 859 F.2d 1490, 1493 (D.C.Cir.1988) (internal citation omitted); see also Hill, 328 F.3d at 684; Green v. United States Postal Serv., 589 F.Supp.2d 58, 69 (D.D.C.2008). The District of Columbia views "reasonably certain" consequences to be those where "it is more likely than not (a greater than 50% chance) that the projected consequence will occur." Moattar v. Foxhall Surgical Assocs., 694 A.2d 435, 439 (D.C.1997) (quoting Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C.Cir.1982)). The parties do not dispute that the plaintiff will continue to need substantial medical care. Def.'s Ex. 36 at 30:11-:17 ("I used ... the number of years that Ms. Patterson estimated... and she said that Ms. Rhodes would need one and a half years of future care costs."); Pl.'s Ex. 53 at 10 (projecting costs for future care through the end of the plaintiff's life). It is equally beyond dispute that the plaintiff will suffer some amount of lost wages, incur costs through the loss of household services, and incur non-economic damages for pain and suffering. Thus, each of the future costs is "reasonably certain" to occur. Therefore, the only issue before the Court is the amount of damages to award for these future costs.

The Court explains below the basis for its ruling on the amount of damages in each of these categories.

1. Past Medical Expenses

The parties have stipulated that the plaintiff's medical bills included in the plaintiff's Exhibit 31, totaling $33,285.17, "are fair and reasonable and that they are related to medical services that were made necessary as a result of the evolution of Miss Rhodes' cancer into stage IV." Trial Tr. ECF No. 70 at 8:22-9:11. This amount apparently excludes those medical expenses, which had originally been part of the plaintiff's claim for past medical expenses but the parties agreed were "not properly recoverable." Id. at 8:11-:13. It is axiomatic that a defendant is only liable for those damages proximately caused by the defendant's actions. See, e.g., Monzel, 641 F.3d at 535; cf. Graham v. Roberts, 441 F.2d 995, 997 n. 3 (D.C.Cir.1970) (in dental malpractice case in which the defendant permitted the patient's condition to worsen progressively by failing to refer the patient to a specialist, defendant was liable for all damages unless he introduces evidence from which a fair apportionment can be made) (citing RESTATEMENT (SECOND) OF TORTS, §§ 433A, 433B, and 450 (1965), and PROSSER ON TORTS § 43 (3rd ed. 1964)); Cooper v. Berzin, 621 A.2d 395, 400-401 (D.C.1993) ("[W]here the plaintiff met its burden to prove culpability and damages and neither party offered evidence of apportionment, the plaintiff was entitled to recover fully unless the defendant offered evidence why he should not fairly be held responsible for all of the damages").

Based upon the parties stipulation that the medical bills contained in exhibit 31 would not have been incurred but for the progression of the plaintiff's cancer to Stage IV, the Court finds that these bills are attributable to the defendant's negligence in the diagnosis and treatment of the plaintiff. See Trial Tr. ECF No. 70 8:22-9:11. Therefore, the Court awards past medical expenses to the plaintiff for all of these medical bills, in the total amount of $33,285.17.

2. Future Care Costs

Both parties' economics experts based their opinions about the cost of the plaintiff's future care at least in part on the recommendations of the plaintiff's rehabilitation nurse expert, Nurse Patterson, and the plaintiff's social worker, Mila Tecala. Trial Tr. ECF No. 71 at 24:5-:9; Def.'s Ex. 36 at 30:11-:17.25 Nevertheless, the estimates for future care costs differ due to differences in the cost estimates for: (1) psychological services (ranging from a lower bound estimated by the defendant's expert to be $2,932, and an upper bound estimated by the plaintiff's expert to be $12,814); (2) the cost of a home health aide (estimated by the defendant's expert to be $32,980 and by the plaintiff's expert to be $49,680); and (3) the cost for inpatient hospice care (estimated by the defendant's expert to be $35,032 and by the plaintiff's expert to be $63,152). See Pl.'s Ex. 54 at 4; Def.'s Ex. 37 at 20.

The method used by the defendant's expert, Dr. Hurdle, to estimate future care costs is unconvincing. For counseling and for a home health aide, Dr. Hurdle makes a fundamental error in logic. Dr. Hurdle calculated the costs for these services using the average wages for a person in the home health and counseling fields. Def.'s Ex. 37 at 16-18. By Dr. Hurdle's logic, the plaintiff would be required to enter the employment market, hire her own counselor and home health aide as employees, and pay them the average hourly wage in the District of Columbia (including "legally required benefits"). See id. The Court will not require the plaintiff to become an employer in order to meet her health care needs. It is far more logical that the plaintiff will use a service to obtain home health care and counseling assistance, and that the service will charge her, as a client, the market rate for this special assistance. The plaintiff's experts correctly calculated the costs of her future home health care and counseling service on this basis rather than based on the amount that the services pay to their employees in wages, as the defendant's expert suggests. See Pl.'s Ex. 54 at 4; Trial Tr. ECF No. 56 at 94:20-:25; 95:1-:7.

The method used by the plaintiff's expert, Dr. Lurito, to estimate the cost of a home health aide and individual counseling is far more realistic. He relied upon Nurse Patterson's calculations, which are derived from the recommendation of a counselor, who based these costs on her knowledge of actual costs in this area for these services, Trial Tr. ECF No. 56 at 94:20-:22, and the expertise of Nurse Patterson, an undisputed expert in the field of nurse rehabilitation who provides life care planning, case management and care coordination. Id. at 93:7-:19.

In estimating the cost of in-patient hospice care, Dr. Hurdle's reasoning is, again, flawed. By contrast to the plaintiff's expert, Dr. Hurdle declined to accept Nurse Patterson's cost estimate, which was based on the cost of the specific hospice facility recommended by the plaintiff's treating physician. Trial Tr. ECF No. 56 at 94:22-:25. Instead, Dr. Hurdle posited that, if in-patient hospice care is necessary, the plaintiff "could go to a nursing home and receive outpatient hospice care at that nursing home." Def.'s Ex. 37 at 19. She then used a private insurance company study of the 2012 market rates in the Washington, D.C. area to determine the minimal cost for a nursing home at $200 a day. Yet, she admits in her report that the same study indicated the average cost of a nursing home in the D.C. area is more than 30 percent higher than $200 a day and she uses this average cost as the upper bound for her calculations. See id. The Court believes in-patient hospice care means hospice care in a hospice, not in an assisted living facility designed for another purpose.

The difference in damage amount estimates between the plaintiff's expert and the defendant's expert is the difference between reality and abstraction. The Court finds that Dr. Lurito's calculations are logical and reasonable based on actual surveys and health care expertise from practitioners. See Pl.'s Ex. 54 at 4; Trial Tr. ECF No. 56 at 94:20-:25; 95:1-:7. Dr. Hurdle's estimates, on the other hand, are based on theoretical economics that appear focused only on yielding the lowest possible cost. Such economic theory provides limited usefulness in compensating the plaintiff for the very real and actual cost of health care she will need in the short amount of time she has left to live. Therefore, the Court finds the plaintiff's expert's estimates of future health care costs to be reliably based on actual costs for the requisite services in this area, and awards $149,886 for this component of the damages award.

3. Future Lost Earnings

The economics experts in this case developed widely divergent numbers when estimating the value of the plaintiff's future lost earnings. The estimate from the plaintiff's expert, Dr. Lurito, is $737,715, Trial Tr., ECF No. 71 at 15:22-:23, and the estimate from the defendant's expert, Dr. Hurdle, ranges from $106,020 to $129,219. Def.'s Ex. 37 at 20. The discrepancy in the numbers results from three major differences in the two experts' calculations: (1) the deduction of "consumption" expenses, (2) the difference in discount rates, and (3) the difference in the estimated number of years the plaintiff would be expected to work. The Court discusses each of these differences below.

a) Consumption Expenses

Consumption expenses account for the "things that [the plaintiff] personally would be using, such as food, clothing, her own personal entertainment, her own personal health insurance or life insurance, things that are just related to her own personal expenditures that no longer would be needed if she ... had passed away." Def.'s Ex. 36 at 15:22-25; 16:1-3. Dr. Hurdle deducted these consumption expenses from the wages the plaintiff could be expected to earn. Id. at 15:9-12. Dr. Lurito did not. Trial Tr. ECF No. 71 at 19:22. Dr. Lurito bluntly explained that his reason for not deducting consumption expenses was "[b]ecause Miss Rhodes is not dead." Id. at 19:24. That explanation is correct under District of Columbia law.

Lost wages "represent[ ] the amount that the injured party would have earned but for the injury." Moattar, 694 A.2d at 438 (quoting District of Columbia v. Barriteau, 399 A.2d 563, 567 n. 6 (D.C. 1979)). "The allowance for such recovery is consonant with the principal purpose for compensatory damages in such cases, which is to make the victim whole." Id. Consumption or personal maintenance expenses are typically deducted in wrongful death actions where "the amount the deceased would have required to maintain himself" is deducted from a lost wages claim. See Runyon v. District of Columbia, 463 F.2d 1319, 1322 (D.C.Cir.1972); Baker v. Socialist People's Libyan Arab Jamahirya, 775 F.Supp.2d 48, 79 (D.D.C. 2011) (deducting personal maintenance expenses from lost wages in wrongful death action); Burton v. United States, 668 F.Supp.2d 86, 111-12 (D.D.C.2009) (same); Hughes v. Pender, 391 A.2d 259, 262 (D.C. 1978) (same). These deductions are made because the money the deceased would have spent on personal maintenance during her lifetime "would not have been available to her estate." Baker, 775 F.Supp.2d at 79. This consideration simply does not come into play outside the context of a wrongful death action.

In a personal injury action, the party suing is the actual party injured and the recovery will go to her. Thus, it makes no sense to deduct the plaintiff's own consumption costs from her award, as she is the one who will be using the lost wages for maintenance of herself. The Supreme Court acknowledged this fundamental difference in Jones and Laughlin Steel Corporation v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). In that case, the Supreme Court noted that lost wages are "intended to compensate the worker for the diminution" of her income stream. Id. at 533, 103 S.Ct. 2541. The Court pointed out that one difference between the lost wages awarded in a personal injury action and those awarded in a wrongful death action is that the former benefits the injured party while the latter benefits the injured party's heirs. See id. at 533 n. 8, 103 S.Ct. 2541.

In urging the Court to accept her analysis, the defendant's expert noted that she used the methodology of deducting consumption expenses in an estimate she prepared for the special master for distribution of the 9/11 Victim's Fund. Def.'s Ex. 36, 17:6-:11. In that context, Dr. Hurdle admits, however, that "the people that I was doing it for were already dead." Id. at 40:14-:16. Significantly, Dr. Hurdle testified that she has never deducted personal consumption expenses before in a personal injury case. Id. at 41:15-:18 ("[P]ersonal consumption is only deducted in a case where the person ... whose income we are projecting is dead and not using that portion of her income for her own benefit.").

Nevertheless, the defendant persists in urging Dr. Hurdle's deduction of personal consumption from the lost wages award in this personal injury case. The defendant relies on pure dictum in a footnote in George Washington University v. Waas, 648 A.2d 178, 182 n. 7 (D.C.1994), where the District of Columbia Court of Appeals briefly mentioned that an expert in that case calculated the lost wages of a living victim with "an increase of 7% annually to account for inflation, promotions and productive growth, and a reduction for state and federal taxes and personal maintenance." Def.'s Concls. at 21. No other analysis was offered in Waas regarding why the personal maintenance was deducted, under what circumstances such a deduction would be appropriate, or why it mattered for the resolution of that case. Indeed, the computation of damages was apparently not an issue before the court, which focused instead on whether the trial court appropriately gave a contributory negligence jury instruction to the jury. Waas, 648 A.2d at 179. This Court declines to give any weight to this dictum.

In any event, Waas predates Moattar v. Foxhall Surgical Associates, 694 A.2d 435 (D.C.1997), where the District of Columbia Court of Appeals held that, in a personal injury action, unlike in a wrongful death action, the appropriate measure of future economic damages is "the amount that the injured party would have earned but for the injury." Moattar, 694 A.2d at 438. At issue in Moattar was whether it was appropriate for a jury to consider the wages a plaintiff would have earned had her life expectancy not been substantially shortened by the defendant physician's negligence.26 Id. The court held that loss of future wages in a personal injury action is "not a premature attempt to recover wrongful death and survival damages ... but an element of damages recoverably by the injured party during her lifetime," even when the plaintiff's imminent death was predicted. Id. at 437-38 (emphasis in original).

The defendant's precise argument — that lost future income in a personal injury case should be treated the same as it is treated in wrongful death actions — was clearly rejected by the District of Columbia Court of Appeals in Moattar. Indeed, not even the dissent in Moattar agreed with the defendant's argument, but instead expressly noted that damages for lost future wages "serve different purposes and are measured differently" when awarded to the living victim on a personal injury claim than when awarded to survivors in a wrongful death claim. Id. at 444 n. 5 (King, J. dissenting). One difference in the measurement identified by the dissent is that "[p]ost-death economic damages represent the sum that would accrue to the estate," and "[b]ecause the deceased has no living expenses," those personal consumption expenses "must be subtracted from the income determined to be lost." Id. In short, the legal support in this jurisdiction for the defendant's proposed method of deducting consumption expenses from the damages awarded for future lost wages on a personal injury action involving a plaintiff with a shortened life span due to the defendant's negligence, just as such expenses are deducted in wrongful death actions, is sparse to nonexistent.27

The Court rejects the defense expert's suggested consumption deduction. While such a deduction has been applied in wrongful death actions, it is not appropriate in a personal injury action to deduct an amount to reflect the plaintiff's personal consumption from the damages awarded for future lost wages.

b) Discount Rates

The parties' experts also dispute the discount rate that should apply to the plaintiff's award. The discount rate is the amount an award is reduced to account for the investment income an individual may make upon receipt of a lump sum award. See Dugar v. Wash. Metro. Area Transit Auth., 565 F.Supp.2d 120, 126 n. 11 (D.D.C.2008) (explaining that the amount that the injured party would have earned but for the injury "must be reduced to [its] present value, using a valid discount rate" to produce "the present value of the loss of future earnings") (quoting District of Columbia v. Barriteau, 399 A.2d 563, 567 n. 6 (D.C.1979)). The plaintiff's expert, Dr. Lurito, used a discount rate of 3.5 percent, which he considered to be "high in today's market." Trial Tr. ECF No. 71 at 17:19-:21. He based his analysis on the amount of interest that could be earned from investing the lump sum in United States government bonds, which, according to Dr. Lurito, are yielding between 2.4 percent and 3.5 percent, based on the bond's maturity date. Id. at 18:20-:25.

The defendant's expert, Dr. Hurdle, used an 8.98 percent discount rate, which approximately reflects the rate at which a person would be able to receive a credit card loan. Def.'s Ex. 36, at 20:5-:24; 21:14-:16. In Dr. Hurdle's opinion, the higher discount rate "reflects the riskiness of the future earnings that the plaintiff would have but for this injury." Def. Ex. 36 at 18:16-:18. Dr. Hurdle indicated that a discount rate that incorporates considerations of risk is used in the commercial context, because in determining what profit a company would have made, "[i]t is pretty common now, I think, with respect to lost profit cases to consider the riskiness of the firm that is losing their profits." Id. at 19:22-:25.

Dr. Hurdle did not testify that she had used this form of discount rate in any other personal injury suit. Nor did the defendant point to a single personal injury case which used this method of essentially bumping-up the discount rate to account for risk. Indeed, in support of Dr. Hurdle's novel theory, the defendant cites only a single case from outside this jurisdiction that, ironically, declined to incorporate risk into the discount rate. See O'Shea v. Riverway Towing Co., 677 F.2d 1194, 1201 (7th Cir.1982) (upholding jury award where damages were calculated using only inflation rate and real interest rate with no additional discount for risk).

The Supreme Court has been clear as to how the discount rate should be determined, stating: "The discount rate should be based on the rate of interest that would be earned on `the best and safest investments.'" Pfeifer, 462 U.S. at 537, 103 S.Ct. 2541 (quoting Chesapeake & Ohio Ry. Co. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 60 L.Ed. 1117 (1916)). Courts both in and outside this jurisdiction have used the Pfeifer standard to calculate net after tax discount rates in personal injury awards. See United States v. Williams, No. 09-0026, 946 F.Supp.2d 112, 118-19, 2013 WL 2285165, at *5 (D.D.C. May 24, 2013) (applying 7 percent discount rate but noting it was "relatively high"); Calva-Cerqueira v. United States, 281 F.Supp.2d 279, 296-98 (D.D.C.2003) (following Pfeifer standard and using a 4.5 percent discount rate); see also Ammar v. United States, 342 F.3d 133, 147 (2d Cir.2003) (stating "the discount rate should reflect only the time value of the money" and noting a default discount rate of two percent is appropriate); Trevino v. United States, 804 F.2d 1512, 1517 (9th Cir.1986) (following Pfeifer in calculating discount rate and noting "[t]he reason that risk-free investments are preferred to more remunerative but riskier investments is that the plaintiff should not be faced with the burden of becoming a full-time broker merely to safeguard his award").

Dr. Lurito based his discount rate on the yield rates for United States government bonds, which he considered to be "the best and safest investments" available. Trial Tr. ECF No. 71 at 18:11-:25. The Court concludes that Dr. Lurito's discount rate has a firm and reliable basis that comports with the legal principles for application of a discount rate set forth in Pfeifer.

c) Working Life

The final major difference between the two expert economists' assumptions in determining the plaintiff's future lost wages is the estimated length of time that the plaintiff would continue working but for the defendant's negligence. The plaintiff's expert, Dr. Lurito, based his estimate of 38.8 years on the plaintiff's stated intent to work until age 65. Trial Tr. ECF No. 71 at 13:13-:16. The defendant's expert, Dr. Hurdle, based her estimate on tables from a single economics journal article, published in 2006, that indicated the statistical average work life for a woman of the plaintiff's age was 27.37 years. Def.'s Ex. 37 at 8. Thus, a gap of over a decade separates the experts' assumption about the plaintiff's work expectancy period and this has a concomitant effect on the calculation of damages.

"The amount that the injured party would have earned but for the injury is not susceptible to precise measurement." Nat'l R.R. Passenger Corp. v. McDavitt, 804 A.2d 275, 290 (D.C.2002) (internal quotation omitted). The District of Columbia Court of Appeals has noted "in evaluating lost earning capacity, the plaintiff's occupational abilities, industriousness, work habits, and experience are relevant." Id. Thus, the focus in determining a plaintiff's work expectancy is on the particular plaintiff herself. "Statistics ... are only one tool which may be used by an expert in forming an opinion."28 Weil v. Seltzer, 873 F.2d 1453, 1465 (D.C.Cir.1989).

Here, Dr. Lurito relied on the plaintiff's express intent to work until the age of 65, which was a very reasonable assumption for an expert to make given the plaintiff's circumstances. The plaintiff is a single mother of two small children, with a high school education, and without an independent source of wealth. See Trial Tr., ECF No. 55 at 74:17-:23; 75:1-11. It is entirely reasonable to believe that a woman in the plaintiff's position would work (indeed, may find herself without a choice but to work) continuously until the age of 65. Moreover, the plaintiff's work ethic was on display during the trial, where she mentioned actively seeking a job even in her debilitated condition. See id. at 102:25; 103:1-9 (stating she had recently secured employment with a cleaning company). It is also entirely common for courts in this district and the local courts in the District of Columbia to credit an injured party's intent to work until retirement age. See Buonocore v. Great Socialist People's Libyan Arab Jamahiriya, Nos. 06-727, 08-529, 2013 WL 351546, at *25 (D.D.C. Jan. 29, 2013) (calculating lost wages up to retirement age); Belkin v. Islamic Republic of Iran, 667 F.Supp.2d 8, 15 (D.D.C.2009) (same); Price v. Socialist People's Libyan Arab Jamahiriya, 384 F.Supp.2d 120, 137 (D.D.C.2005) (same); United Mine Workers of Am., Int'l Union v. Moore, 717 A.2d 332, 340 (D.C.1998) (crediting injured party's statement for worklife expectancy); Charles H. Tompkins Co. v. Girolami, 566 A.2d 1074, 1076 n. 4 (D.C. 1989) ("The court properly instructed the jury that [statistical] tables are only one factor (not conclusive) for it to consider in connection with other evidence of the claimant's `health, habits, and activity' in determining this claimant's work-life expectancy.").

Notably, while Dr. Hurdle cites statistics from one economics journal article to calculate the plaintiff's expected working life, she offers no reasons why the Court should accept those statistics, why they are reliable, or why she chose those particular statistics or source. See Def.'s Ex. 37 at 8 n. 17 (citing Kurt Krueger et al., WORKLIFE IN A MARKOV MODEL WITH FULL-TIME AND PART-TIME ACTIVITY, 19 J. FORENSIC ECON. 80 (2006)). Set against the plaintiff's statement of intent and circumstances, as well as the caselaw that generally uses the retirement age of 65 in determining the work expectancy period, the Court finds that the assumption of the plaintiff's expert, Dr. Lurito, that the plaintiff would have worked until age 65 to be firmly grounded in the record and imminently reasonable.

* * *

In sum, the Court rejects as legally suspect or unreliable the key assumptions underlying the defendant expert's calculation of lost wages in favor of the plaintiff's expert's method for computing this aspect of the damages award. Therefore, the Court awards the plaintiff $737,715 for future lost wages.

4. Loss of Household Services

Both parties concede that the loss of household services, which are described by the plaintiff's expert as "the value of the services ... Miss Rhodes would have provided to the children absent what's happened to her," are appropriate in this case. See Trial Tr. ECF No. 71 at 20:22-25; Def.'s Ex. 37 at 12-13. The plaintiff's expert estimates the loss of household services to range from $508,121 to $652,939, Pl.'s Ex. 54 at 5, while the defendant's expert estimates the loss to range from $164,729 to $347,628, depending on the method the defendant's expert used to calculate the loss. See Def.'s Ex. 37 at 15. Both parties calculate the loss of household services to when the plaintiff's youngest child reaches either the age of 18 or 21, well past the plaintiff's estimated life expectancy. See Pl.'s Ex. 54 at 3; Def.'s Ex. 37 at 12-15.

The value of household services awarded in a personal injury case is to compensate the injured party for her inability to do all of the things she was once able to do. See Lariscy v. United States, 655 F.Supp. 1053, 1058 (D.D.C.1987). The plaintiff's children are not parties to this action and therefore the computation of the loss of household services do not inure to their benefit but must be limited to the anticipated lifespan of the plaintiff. See Trial Tr. ECF No. 71 at 20:22-25.

Here, there is no doubt the plaintiff is unable to do everything she was once able to do in taking care of her children and her household. See, e.g., Trial Tr. ECF No. 56 at 14:7-:8 ("[The plaintiff] doesn't have the energy or the wherewithal to do it because she is in pain."). Nurse Patterson also testified that there will come a time when, as a result of her Stage IV cancer, the plaintiff will be virtually unable to function at home and will need hospice care, quite possibly necessitating a move into an assisted care facility. See Trial Tr. ECF No. 56 at 96:12-:24.

Both economics experts based their loss of household services estimates on the assumption that the plaintiff would be unable to provide for herself or her children as of January 1, 2014, and that her life expectancy does not extend beyond October, 2014. See Pl.'s Ex. 54, at 3-4; Def.'s Ex. 37, at 3, 12. Thus, the value of the household services the plaintiff will not be able to provide for during that ten month period must be determined. Once again, the parties' experts differ as to how they calculate the value of lost household services.

Dr. Lurito, the plaintiff's expert, derived his valuation by determining the replacement cost, or what it would cost to hire a live-in nanny to provide the "household/parental services" the plaintiff will no longer be able to provide due to her illness. Pl.'s Ex. 54, at 3. He estimated that "the cost for a live-in homemaker to care for the children is at least $124 per day in the District of Columbia area." Id.

Dr. Hurdle, the defendant's expert, offered two different estimates to account for the loss of household services. First, Dr. Hurdle accepted the plaintiff's expert's estimate for the cost of a live-in nanny ($124 per day) and reduced the cost using an 8.98 percent discount rate to account for the "risks associated with the need for a homemaker. For example, Ms. Rhodes herself may be able to provide these services for longer than assumed ... or a relative other than a live-in homemaker may choose to care for the children." Def.'s Ex. 37, at 12. She also offered an alternative methodology where she used economic statistics tables to estimate the "average hourly value of household production in the District of Columbia." Id. at 13 (citing Expectancy Data, THE DOLLAR VALUE OF A DAY: 2010 DOLLAR VALUATION (2011)). The tables are apparently based on a survey conducted by the U.S. Department of Labor's Bureau of Labor Statistics to determine "the number of hours that the average person spends performing household services and the average wage that a person performing those services would earn." Id. This statistic does not appear to take account of the level of supervision required for small children, which is the actual circumstance of the plaintiff's situation. Once again, Dr. Hurdle's theory is not grounded in the reality the plaintiff will experience.

Even if, as Dr. Hurdle suggests, the plaintiff is able to provide some household services in 2014, Def.'s Ex. 37, at 12, the plaintiff's young children will require constant supervision and the plaintiff's home will require housekeeping when the plaintiff becomes incapacitated. It is reasonable to assume, in estimating the cost to the plaintiff for the loss of household services, that she will have to pay market rates for a child care professional and/or a housekeeper to keep her household running. Dr. Lurito's estimate uses such a market rate in determining the costs the plaintiff will incur. Therefore, the Court finds the plaintiff's expert's daily cost estimate to be well-grounded in the record and particularized to the plaintiff's circumstances.

The plaintiff's expert estimates it will cost approximately $124 per day to compensate the plaintiff for her loss of household services. Pl.'s Ex. 54, at 3. The plaintiff is expected to be unable to provide household services beginning on January 1, 2014, which would represent a ten month gap before the end of her life expectancy during which she will need to pay for such services. See Pl.'s Ex. 54, at 3-4; Def.'s Ex. 37, at 3, 12. At $124 per day for 304 days (the number of days in the year ending October 31), the Court finds $37,696 to be an appropriate award for the plaintiff's loss of household services.29

5. Pain and Suffering

Finally, the plaintiff requests a non-economic damages award of $6 million for her pain and suffering. Pl.'s. Concls. at 47. The defendant has failed to address the issue of noneconomic damages at all in its proposed conclusions of law. See generally Def.'s Concls. Thus, the Court is left with virtually no response to the plaintiff's request in determining the "notoriously difficult" matter of "determining an appropriate figure for intangible losses such as emotional suffering." Bodoff v. Islamic Republic of Iran, 424 F.Supp.2d 74, 86 (D.D.C.2006). Any decision is obviously fact specific and the fact finder "has broad discretion in calculating damages for pain and suffering." See Stern v. Islamic Republic of Iran, 271 F.Supp.2d 286, 300 (D.D.C.2003) (citing Taylor v. Washington Terminal Co., 409 F.2d 145, 150 (D.C.Cir. 1969)).

A brief survey of other medical malpractice and FTCA cases has yielded a wide variety of non-economic damages awards. See, e.g., Dugar v. Wash. Metro. Area Transit Auth., 565 F.Supp.2d 120, 127-28 (D.D.C.2008) ($90,000 for pain and suffering awarded to plaintiff who experienced a fractured clavicle in a bus accident); Calva-Cerqueira v. United States, 281 F.Supp.2d 279, 294-95 (D.D.C.2003) ($5 million in non-economic damages awarded to plaintiff, who suffered brain damage and significant physical disfigurement as a result of defendant's negligence in vehicular accident); Primus v. Galgano, 329 F.3d 236, 239-240 (1st Cir.2003) ($960,000 award for future pain and suffering upheld in case where plaintiff, due to her physician's malpractice, was not diagnosed with breast cancer for two years after the doctor initially examined the patient); Kasongo v. United States, 523 F.Supp.2d 759, 762 (N.D.Ill.2007) ($1 million awarded in pain and suffering to the family of an AIDS patient, whose doctor failed to diagnosis her lactic acidosis, which resulted in her death); Fairhurst v. United States, No. 03CV601, 2006 WL 2190553, at *4 (N.D.Fla. Aug. 1, 2006) ($400,000 awarded for pain and suffering for a cancer misdiagnosis).

More recently, a District of New Jersey court was confronted with a similar challenge of determining the amount of damages in an FTCA case brought by a plaintiff, who visited her doctor when she was 41-years-old "requesting a mammogram and complaining of pain and a lump," but was not diagnosed with breast cancer for an additional twenty-one months because her doctor violated the national standard of care. Fletcher v. St. Joseph Reg'l Med. Ctr., No. 10-1499, 2013 WL 1651806, at *7 (D.N.J. Apr. 15, 2013). In Fletcher, the plaintiff's survival rate dropped from an 87.4 percent 10-year survival rate to zero. Id. at *11. The court awarded the plaintiff $3.25 million in non-economic pain and suffering damages. Id. at *10. The plaintiff in Fletcher, like the plaintiff here, lost her breast and experienced "pain, suffering, loss of enjoyment of life, anxiety, and fear of dying." Id. at *10. Both the Fletcher plaintiff and the plaintiff in this case saw their breast cancer prognosis drop from likely survival to imminent death as a result of their physicians failing to follow the national standard of care and appropriately diagnose their breast cancer. See id. at *7-8. Both women now face cancers that have metastasized into their bones, leading to great pain and suffering. Id. at *9. The Court finds the facts in Fletcher remarkably similar to the facts here and therefore views it as a useful benchmark.

A prerequisite for a pain and suffering damage award under District of Columbia law is that the victim's suffering must be "conscious" in order to be compensable. See Doe v. Binker, 492 A.2d 857, 861 (D.C.1985). Juries in the District of Columbia are further instructed, when considering a damages award, that they may consider: (1) the extent and duration of any physical injuries sustained by the plaintiff; (2) the effects that any physical injuries have on the overall physical and emotional well-being of the plaintiff; (3) any physical pain and emotional distress that the plaintiff has suffered in the past; (4) any physical pain and emotional distress that the plaintiff may suffer in the future; (5) any disfigurement or deformity suffered by the plaintiff, as well as any humiliation or embarrassment associated with the disfigurement or deformity; (6) any inconvenience the plaintiff has experienced; and (7) any inconvenience the plaintiff may experience in the future. D.C. Standardized Civil Jury Instruction § 13.01, 1-7; see also Allstate Ins. Co. v. Ramos, 782 A.2d 280, 282 (D.C.2001) (describing jury instruction provided in automobile accident case). These instructions provide useful reference here.

Here, the plaintiff lives in constant pain and has not had a "significant pain free, truly pain free period" since at least January, 2012. Trial Tr. ECF No. 56 at 34:4-:5. Thus, the "extent and duration" of her injuries is continuous and will be so until her death. As for the effect her injuries "have on the overall physical and emotional well-being of the plaintiff" and emotional distress, the plaintiff experiences sadness and deep and constant feelings of guilt about the way her impending death will affect her children. See Trial Tr. ECF No. 55 at 107:6-:9; Trial Tr. ECF No. 56 at 12:12-:15. She also fears death and the prospect of being unable to take care of herself. See Trial Tr. ECF No. 56 at 14:2-:4 ("Her fear of death is probably just as strong as her fear of living ... with pain and suffering and not able to function at all and play with her children."). The District of Columbia also instructs jurors to consider "disfigurement or deformity" and, here, the plaintiff has suffered through the loss of her breast and her hair due to her mastectomy and the effects of her chemotherapy. Id. at 9:19-:21; 31:22-:23; Trial Tr. ECF No. 55 at 105:19-:22. Finally, regarding past and future inconvenience, the plaintiff is conscious every day of her life that she will die soon, leaving her young children without a mother. See Trial Tr. ECF No. 55 at 107:6-:9. Furthermore, at some point in the future, efforts at treating her symptoms will fail and her pain will continue to grow worse. See Trial Tr. ECF No. 56 at 34:10-:20 (noting "at some point in the future ... no treatment will be available" to the plaintiff and hospice care will be necessary).

Any determination of a non-economic damages award is, by necessity, fact-intensive and tailored to the specific circumstances of the plaintiff. As in the determination of past care costs, however, it is necessary to determine to what extent the plaintiff's non-economic damages are caused by the progression of her cancer to Stage IV and are segregable from damages she would have suffered had her cancer been properly diagnosed and treated at Stage I. See III.D.1 supra. The plaintiff does not allege, nor could she prove, that she would have endured no pain and suffering if not for the defendant's negligence. Indeed, as the plaintiff's experts noted, the plaintiff most likely would have undergone a mastectomy and chemotherapy even had her cancer been caught at Stage I. See Trial Tr. ECF No. 56 at 72:12-:20; 73:2-:10. Although her survival rate would have been nearly 100 percent, the plaintiff would always have lived in some fear that her cancer would return. See Trial Tr. ECF No. 56 at 77:14-:16. The Court is mindful in evaluating the plaintiff's request for an award of $6 million that, even absent the defendant's negligence, she would have suffered some level of pain and suffering.

Nevertheless, the fact that the defendant's negligence converted what was a likely survivable diagnosis to a certain death sentence has caused and will continue to cause pain and suffering far beyond what the plaintiff would have endured had the defendant caught the plaintiff's cancer when she first presented with symptoms. Again, the Court finds the Fletcher court's award instructive, but notes that the plaintiff here has the added feelings of sadness and worries about leaving her children motherless and is more than a decade younger than the plaintiff in Fletcher and is therefore losing that much more of her life. Consequently, the Court finds, upon consideration of the seven factors enumerated in the District of Columbia's jury instructions and the decisions in this and other Districts in similar FTCA cases, that an award of $3.5 million for non-economic damages is reasonably appropriate.

* * *

In total, the Court awards the following in economic and non-economic damages to the plaintiff:

These costs total $4,458,582.17.

IV. CONCLUSION

For the aforementioned reasons, the Court finds Dr. Hill-Daniel breached the applicable national standard of care in her treatment of the plaintiff as her primary care physician and this negligence was the proximate cause of the progression of the plaintiff's breast cancer from Stage I to incurable Stage IV. The Court further finds that the plaintiff has proven the costs she has already incurred for medical expenses directly attributable to the defendant's negligence and a reasonable estimate of the costs she will incur going forward. Therefore, the Court will enter judgment in favor of the plaintiff and award damages in the amount of $4,458,582.17.

A separate order accompanies this Memorandum Opinion.