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Toche v. Killebrew

February 09, 1999

DOROTHY EASTERLY TOCHE APPELLANT
v.
LARRY H. KILLEBREW, M. D. APPELLEE



Before McMILLIN, P.j., Coleman, And Payne, JJ.

The opinion of the court was delivered by: McMILLIN, P.j., For The Court:

DATE OF JUDGMENT: 11/26/96

TRIAL JUDGE: HON. JERRY O. TERRY SR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE

TRIAL COURT DISPOSITION: JURY RETURNED A VERDICT IN FAVOR OF THE DEFENDANT

DISPOSITION: AFFIRMED - 02/09/99

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

¶1. This is an appeal from a jury verdict rendered in favor of the defendant doctor in a medical malpractice action. Dorothy Toche, the plaintiff at trial, had filed suit against Dr. Larry Killebrew, claiming that he negligently failed to detect an existing cancerous condition in her breast at a time when the disease had every prospect of being successfully treated without substantial adverse consequences to her overall health. Instead, according to her claim, because of Dr. Killebrew's failure to detect and diagnose her condition, the cancer was, over a course of several years, permitted to advance to the point that, once detected, it required aggressive treatment that was both expensive and extremely painful, and, additionally, left her overall health in a substantially deteriorated state and her prospects of ultimate recovery from cancer greatly diminished. Toche's claim was submitted to a jury on the theory of Killebrew's negligence in his treatment of Toche and the jury returned a verdict in favor of the defendant, Dr. Killebrew. It is from the judgment entered in furtherance of this verdict that Toche has appealed to this Court. She raises three issues for consideration. We find them to be without merit and affirm the judgment of the trial court.

I.

Facts

ΒΆ2. Toche, in 1990, was under the treatment of Dr. Killebrew for a lump that had been discovered in one of her breasts. Dr. Killebrew surgically removed the lump and subsequent testing revealed that the lump was malignant. As a result, Toche continued on a regular basis to return to Dr. Killebrew for further examination and appropriate testing. Toche's medical records reflect that, during this time, there was some continued monitoring by Dr. Killebrew of other small abnormalities in Toche's breast that appeared to be calcium deposits; however, Dr. Killebrew's records indicate that there was no enlargement or ...


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