Opinion
No. 92-05675.
Decided July 29, 1993.
John A. Goldberg, for plaintiff.
Lee Fisher, Attorney General, and M. Celeste Cook, Assistant Attorney General, for defendant.
Plaintiff Shirley Dowling alleges in her complaint that, as an inmate at the Ohio Department of Rehabilitation and Correction ("ODRC") at the Ohio Reformatory for Women ("ORW"), defendant was negligent, in that it failed to timely diagnose cancer in her right breast, thereby requiring her to undergo a mastectomy. Defendant denied any negligence. This case was tried on June 21, 1993, and submitted for decision. The findings set forth in this decision have been established by a preponderance of the evidence.
Plaintiff was an inmate at ORW at all times in 1990 and 1991, during the period when she alleged that defendant was negligent.
Plaintiff was born on February 15, 1940, and had no primary history of breast cancer.
On April 10, 1990, plaintiff was examined by ORW physician Dr. John Evans for an "over 50 years of age exam." He noted that her breast was tender, but he did not feel any nodules or masses. He ordered a bilateral screening mammography. The mammograms were performed one month later on May 10, 1990, at the Ohio State University Hospital ("OSUH"), and showed no dominant areas or radiographic signs of malignant disease.
In addition, medical records show that on June 14, 1990, plaintiff was seen at her request for sun screen lotion. Also, plaintiff had a culture taken for an infected throat in October 1990, and erythromycin was prescribed for her.
On April 8, 1991, plaintiff came to see Dr. Evans with a complaint of bladder leakage with some nausea and vomiting on the previous night. After performing an examination, Dr. Evans arranged for plaintiff to see Dr. Shamley, who specializes in gynecology at OSUH. On April 11, 1991, Dr. Shamley examined her abdomen and performed a pelvic examination. His impression was that there was urinary incontinence and treatment included checking urodynamics, rechecking her mammograms, and starting Premarin replacement after the urodynamics were performed. He ordered yearly bilateral mammograms on plaintiff.
From April through August 1991, plaintiff had many visits to the nurse and doctor at ORW for medication refills, minor complaints, conjunctivitis, etc. She did not complain to medical or nursing personnel of any breast masses until September 3, 1991.
On June 18, 1991, plaintiff was referred to, and was seen at OSUH by, Dr. William Copeland, Jr., a gynecologist in the Female Urodynamics Clinic. Dr. Copeland performed a physical examination on plaintiff. He made notes including findings consistent with stress incontinence. His final diagnosis was mixed urinary incontinence, resulting from a combination of stress and detrusor instability. Plaintiff made no complaints regarding her breasts and Dr. Copeland did not do a breast examination. Dr. Copeland prescribed Premarin and Dritropan and she was given Macrodantin. Dr. Copeland ordered a follow-up visit with Dr. Shamley of the OSU Gynecologic Clinic in six weeks.
Plaintiff had a follow-up appointment with Dr. Shamley on July 31, 1991. He noted that her urinary condition was much improved. Dr. Shamley reordered Premarin and Dritropan. No physical examination was documented and no breast examination was performed.
On September 3, 1991, plaintiff complained to the nurses at ORW of a lump in her right breast and of an eye infection. She was examined by Dr. Evans. He found a three × five cm. hard mass in the upper outer quadrant of the right breast and also determined she had conjunctivitis. He sent plaintiff to OSUH, where a mammography was performed on September 5, 1991. The radiologist concluded that it was probably a right breast carcinoma, which was an extremely rapid growing lesion.
On September 9, 1991, plaintiff was admitted to OSUH, complaining that she had had a mass in her right breast for two months. She felt that the mass was related to her being on Premarin and also secondary to her work at ORW as a cosmetologist. She also had pain under her right axilla.
On September 11, 1991, a needle biopsy of the right breast revealed cytology compatible with adenocarcinoma. A bone scan was nonspecific and revealed no evidence of metastasis.
On September 13, 1991, plaintiff had a right modified radical mastectomy. Pathology confirmed a three × three × three cm. tumor in the lateral superior aspect of the right breast. The nipple was free of involvement of carcinoma. The microscopic diagnosis was invasive ductal carcinoma of the breast, comedo pattern, high grade. Seven of the thirteen low axillary lymph nodes and eleven of the thirty high axillary lymph nodes were positive for carcinoma for a total of eighteen positive lymph nodes. Both estrogen and progesterone receptors were negative. While in the hospital, an oncologist recommended adjuvant chemotherapy. On September 27, 1991, plaintiff was discharged from OSUH. On October 25, 1991, plaintiff began adjuvant chemotherapy, which was completed on May 11, 1992.
A follow-up visit in the surgery clinic on March 16, 1992, revealed that the right chest wall and axilla were negative and the left breast was without masses. A bone scan of February 3, 1992, showed no evidence of metastatic disease. Dr. Thornton saw plaintiff throughout the period December 1991 through May 1992, and concluded that she had no evidence of recurrent carcinoma. On June 18, 1992, plaintiff had a stable left mammogram without any specific abnormalities suggestive of malignancies.
The court finds that Dr. Shamley ordered screening mammograms for plaintiff on April 11, 1991, because he was planning to start her on Premarin, an estrogen replacement therapy. Dr. Copeland saw plaintiff on June 18, 1991, and started her on Premarin without a breast examination or checking whether the mammography was done. It is within normal and reasonable standards of medical practice for a one-to-three month time period to elapse after screening mammograms have been ordered. However, within a reasonable degree of medical probability, had the diagnosis of breast cancer been established in plaintiff in either April, May or June 1991, she still would have had an early stage eleven breast carcinoma with at least four positive axillary lymph nodes and would have required the same surgical treatment and adjuvant chemotherapy.
Premarin does not cause cancer, but it definitely can be associated with the development of a rapid growth rate of the cancer.
There are some women who know how to examine their breasts better than does a physician, and there are women who never properly examine their breasts. However, it is common knowledge that women should examine their breasts, looking for any lumps, on a regular basis. If they find any lumps, they should contact their physicians immediately.
The expert witnesses for both plaintiff and defendant testified, and the court finds, that failure to perform screening mammograms in 1990 and 1991 was not below the standard of care for a doctor. Furthermore, both expert witnesses testified that while the American Cancer Society, a national cancer institute, recommended annual mammography for women fifty years of age and older, this is just a guideline, and that, in fact, less than fifty percent of the women in the civilian population obtain an annual screening mammogram. Mammograms are never perfect, but technology has improved the results and eliminated some of the risks. However, diagnostic mammograms are mandatory in a patient with a lump in her breast.
Prior to 1991, ORW ordered only diagnostic mammograms. ORW had a contract with OSUH whereby it agreed to do four mammograms per week, and they were completed in a timely fashion. However, ORW decided to follow the recommendation of the American Cancer Society and have yearly screening mammograms performed on all inmates who were fifty years of age or older. Between January and September 1991, ORW ordered approximately five hundred twenty-two mammograms. Only one hundred fifteen were completed because of security demands while transporting inmates from ORW to OSUH. During the months of April, May and June, one hundred eighty-two mammograms were ordered, but only thirty-one were completed. The security problem was resolved in late 1991, when OSUH agreed to send a mobile unit to ORW to perform mammographies at the institution.
Plaintiff alleges that ORW was negligent and proximately caused her injury by failing to have a screening mammogram performed on her by May 1991. However, even plaintiff's own expert witness testified that twelve to sixteen months for a yearly screening mammogram was reasonable. ORW made an executive or planning decision involving the exercise of a high degree of official judgment or discretion, and it took some time to work out a method of implementing that judgment. ORW is not liable for making that judgment and was not negligent in the implementation of the decision to give women inmates a yearly screening mammogram. In Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506, 471 N.E.2d 776; and Garland v. Ohio Dept. of Transp. (1990), 48 Ohio St.3d 10, 548 N.E.2d 233, the court held: "Once a governmental entity has made a discretionary decision, it has a reasonable amount of time to implement that decision without incurring tort liability." Based on the totality of the evidence, the court finds that ORW acted responsibly and reasonably in implementing annual mammogram screening of certain inmates and then implementing that policy under restrictive conditions.
Plaintiff also alleges that Dr. Evans was negligent in giving her a reorder of the prescription for Premarin ordered by the gynecologist. The court finds this argument is without merit. The general practitioner, Dr. Evans, had referred plaintiff to Dr. Copeland because he was a specialist in gynecology. Dr. Evans cannot be expected to substitute his judgment for an expert's treatment of the plaintiff. Whether either Dr. Shamley or Dr. Copeland was negligent in the treatment of plaintiff is not an issue that is before this court.
Plaintiff has failed to prove by a preponderance of evidence that defendant was negligent or was the direct and proximate cause of her injuries. Therefore, judgment will be rendered in favor of defendant.
Judgment for defendant.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.