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EDWARD LADNER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JUDITH LADNER v. H. F. CAMPBELL

NOVEMBER 04, 1987

EDWARD LADNER, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF JUDITH LADNER
v.
H. F. CAMPBELL, M. D.



BEFORE ROY NOBLE LEE, C.J., PRATHER AND SULLIVAN, JJ.

PRATHER, JUSTICE, FOR THE COURT.

A medical malpractice case alleging a failure to timely diagnose and treat cancer gave rise to this appeal. Judith Ladner and her husband, Edward, filed a complaint against Dr. H. F. Campbell, for this alleged negligent diagnosis, which suit, filed in the Circuit Court of Stone County, concluded in the granting of a directed verdict at the conclusion of plaintiff's case in favor of Dr. Campbell. Ladner appeals from the directed verdict and judgment and from a subsequent order overruling a motion for relief from final judgment, assigning as error inter alia the following:

(1) The circuit court erred in excluding the entire testimony of Dr. Dwight Brower as an expert witness for appellant.

 (2) The circuit court erred in granting a directed verdict and judgment in favor of appellee Campbell.

 I.

 On September 15, 1982, Edward and Judith Ladner filed a complaint against H. F. Campbell, M.D., a physician in the general practice of medicine in Wiggins, Mississippi, stating that he failed to properly diagnose Judith Ladner's breast cancer in its early stages when symptoms indicated a cancerous condition. Dr. Campbell's answer is essentially a general denial.

 Because Judith Ladner died during pendency of the action, on motion to revive, the court ordered that the action be revived, that Edward Ladner be authorized to proceed individually and on behalf of all heirs of Judith Ladner and as administrator of her estate, and that he be authorized to amend the complaint to reflect the death of Judith Ladner on December 28, 1983 and to allege that Campbell is further liable for wrongful death.

 Judith Ladner's deposition was introduced at trial. In that deposition she stated that she had performed self-examinations of her breast for many years because her family's medical history included the removal of two tumors from her aunt. She went to see Dr. Campbell, licensed in family practice, on June 10, 1981, because the night before she had felt a lump at the upper part of her breast on the left side. This visit was about a week and a half before her next menstrual period.

 She told Dr. Campbell "I think I found a lump in my breast." He said, "Oh, let's not jump to conclusions," and examined her and then asked her to locate the lump. She denied showing Dr. Campbell the general area of the lump and stated, "I showed him the lump . . . ." Campbell said that he felt nothing and that it seemed that her breast bone was bigger on the left than on the right side. When he started to walk away, she said, "But, Dr. Campbell, it's sore." Campbell said he imagined she was sore because she had been mashing it all night, but reassured her that there was no reason for alarm and suggested that she return to work. They shared some remarks with levity about her undue concern. Leaving the doctor's office, she told the receptionist that she felt like an idiot and that there was nothing in the world wrong with her.

 Although she continued self-examination and found the same lump about three times between June and October, she forgot about it, as her life was very busy. She stated that she did not seek a second opinion because she did not want to be laughed at again, although she too had laughed.

 At a football game on October 16, 1981, she threw up her arms to cheer and had to leave because of pain. She testified that on Saturday, October 17, she saw Dr. Campbell, who asked why she had not been in to see him sooner. She began crying and told him she had, and when he looked at the chart he said, "Oh, my God, you did." Dr. Campbell said that a biopsy had to be done immediately. After the biopsy, the doctor said, "I have made a great mistake on you," and "I feel terrible about what's happened."

 Dr. Campbell, called as an adverse witness, testified that Judith Ladner complained of a lump in her high chest on the chest wall between the third and fourth rib. He further stated that the lump was not big enough for him to feel, to palpate, to diagnose or for her to show him in the office and that neither the woman nor the doctor can find a lesion smaller than one centimeter. He could not find the lump,

 and she could not show him or demonstrate a lump. He examined her for ten minutes. He testified that she finally admitted, "Doctor, I cannot find a lump in my breast at this time," that he told her to examine herself daily, to call anytime she found something suspicious and to return regardless in three months, and that she said she would.

 Dr. Campbell stated that it is fair to say that the cancer grew between June and October, 1981, but even if the cancer were diagnosed, in all probability it would have been too late.

 The testimony of Judith Ladner's husband, Edward Ladner, generally corroborated Judith Ladner's deposition, and he stated that he felt the lump in June, 1981.

 Dr. David M. Owen, specializing in oncology, the study and treatment of cancer, and practicing in Mississippi, testified that he was Mrs. Ladner's primary physician from October, 1981 to her death. He stated that he knows of no way to diagnose a lump in the breast if he can't palpate it. A mammogram may have helped if the lump were far down in the chest, but it would have shown nothing in this case. His hands would be more accurate, and statistically a trained physician's examination is better than a mammography in detecting cancer. The mammography of October 22, 1981 and two subsequent ones failed to reveal the existence of cancer, but falsely showed fibrocystic disease.

 Dr. Owen next testified as to "staging." Staging in reference to breast cancer is a means of deciding the extent of the involvement of the cancer. In Dr. Owen's opinion, Mrs. Ladner was in stage II in October, 1981, with a five year survival rate of 35 percent, as opposed to 70 percent for stage I patients. Where four or more axillary nodes are involved as shown by the surgery here, the survival rate falls considerably. Within a reasonable medical probability, there were undoubtedly four nodes involved in June, and the disease had spread beyond the nodes. It does not necessarily spread from node to node. If there were fewer than four involved in June, her chances of survival would have been better. Other factors gave her a very poor prognosis. Within a reasonable medical probability, the four month delay did not effect her chance of survival. Had the cancer been found June 10, 1981, there would be no change in the likelihood of her living beyond December 28, 1983, regardless of what Dr. Campbell could have done.

 In the opinion of Dr. Owen, based on reasonable medical probability, Dr. Campbell did not deviate from the medical

 diagnostic standards. Owen's testimony was that Ladner's complaint of soreness and pain had no relation to the subsequent diagnosis on October 17; that nothing Dr. Campbell did or failed to do contributed in any way to the cancer or the extent of it or aggravated it; and that all the same expenses would have been incurred if a lump had been found in June, 1981.

 Dr. Altemose, another oncologist, testified next by deposition. His opinion as to breach of the standard of care was excluded. He did testify that within a reasonable medical probability, assuming Dr. Campbell's records are correct, she would have been clinically a stage I in June, 1981 with an 85 percent five year survival chance, and stage II in October, 1981 with a 66 percent five year survival chance. Dr. Altemose stated that within a reasonable medical probability, in view of the pathological staging, nothing from June 10, 1981 to December 28, 1983 could have been done that would have altered her survival one day, although her primary caring oncologist and perhaps her surgeon would be best able to predict her ultimate outcome.

 The plaintiff offered the testimony of a general practitioner, Dr. Dwight Brower of Baton Rouge, Louisiana. His testimony as to the standard of care was excluded by the trial court as incompetent. This is the subject of the first assignment of error and will be discussed in more detail in Part II of this opinion. With the exclusion of Dr. Brower's testimony, the complainant rested.

 After the plaintiff rested, the court directed a verdict for the defendant, Dr. Campbell, because the defective nature of Dr. Altemose's hypothetical and the cross-examination of Dr. Altemose took away any ...


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