Summary
In Tomcik, the Court of Claims, when awarding damages, considered the fact that the plaintiff's life expectancy had been reduced by approximately fifteen percent.
Summary of this case from Davison v. RiniOpinion
No. 90-06437.
Decided October 7, 1991.
Richard J. Berris, for the plaintiff.
Lee Fisher, Attorney General, and M. Celeste Cook, Assistant Attorney General, for the state.
This case arises from events that transpired while plaintiff, Janet Tomcik, was in the custody and control of defendant Department of Rehabilitation and Correction. Plaintiff alleges that certain acts and omissions of defendant's employees constituted medical negligence. More particularly, it is alleged that defendant's medical employees failed to initially diagnose cancer in plaintiff's breast, and also failed to act upon her continued complaints that a lump was present in her breast. The asserted result was that the cancer was allowed to progress to the stage where plaintiff was unable to utilize certain breast conserving procedures, but instead was required to have her entire right breast removed.
Defendant denied any negligence on the part of its employees and claimed that plaintiff's own negligence caused or contributed to whatever damages she may have sustained. Furthermore, defendant contends that even if its employees were negligent, plaintiff's cancer was so far developed when discovered that it would nevertheless have required the removal of her entire breast.
This cause came on for trial on July 22, 1991. Having reviewed all of the evidence submitted by the parties, and after considering the excellent arguments of counsel, the court concludes that plaintiff's complaint is well founded.
The law applicable to medical negligence cases has been settled for a considerable time. A physician or surgeon is required to utilize reasonable and ordinary care and diligence in the exercise and application of his skill and knowledge to accomplish the purpose for which he was employed. See Gillette v. Tucker (1902), 67 Ohio St. 106, 122, 65 N.E. 865, 871. As stated in Ault v. Hall (1928), 119 Ohio St. 422, 428, 164 N.E. 518, 520:
"[T]he plaintiff must show by a preponderance of the evidence * * * that the defendant in the performance of his service either did some particular thing or things that physicians and surgeons of ordinary skill, care, and diligence would have done under the same or similar circumstances, or that the defendant failed or omitted to do some particular thing or things that physicians and surgeons of ordinary skill, care, and diligence would have done under the same or similar circumstances. It follows of course that plaintiff must show and the jury must find that the injury complained of was the direct result of doing or omitting to do some one or more of such particular things."
In the present case, plaintiff alleges a failure to diagnose her condition at a time when effective treatment would have greatly reduced the impact of the cancer. A failure to exercise due care in the diagnosis of an ailment or condition may create liability if the subsequent treatment should have been different, based upon the correct diagnosis, from the treatment actually administered. Meyers v. Clarkin (1929), 33 Ohio App. 165, 168 N.E. 771. See, also, the wide variety of authority supporting this proposition set forth in 67 Ohio Jurisprudence 3d (1986) 42, Malpractice, Section 31, at fn. 58. Furthermore, "any want of the proper degree of skill or care which diminishes the chances of the patient's recovery, prolongs his illness, increases his suffering, or, in short, makes his condition worse than it would have been if due skill and care had been used, would, in a legal sense, constitute injury." Craig v. Chambers (1867), 17 Ohio St. 253, 261.
At the trial of this case, evidence indicated that plaintiff was incarcerated in the Ohio Reformatory for Women ("ORW") on April 28, 1989. She was to serve a sentence of one and one-half years' incarceration, having pleaded guilty to the crimes of possession of criminal tools and receiving stolen goods. She was thirty-one years old at this time and had no previous convictions.
Pursuant to ORW's policy of medically evaluating all new inmates, plaintiff, on May 26, 1989, was given a medical examination by Dr. John R. Evans, who has been the medical director at ORW since 1974. Dr. Evans is an employee of the institution and worked at this employment approximately thirty hours per week. He holds clinics on a daily basis and conducts admission physicals approximately three weeks after an inmate is received at ORW.
Dr. Evans testified that part of his required physical evaluation included an examination of plaintiff's breasts. However, he stated that his examination of plaintiff's breasts was very cursory. He also stated that he did not take any time to carefully palpitate and examine the entirety of either breast, which procedures are normally required to determine whether lumps are present. Instead, the physician testified that he did no more than to press lightly upon each breast. His examination of plaintiff's breasts took no more than ten seconds. Obviously such an examination would miss most lumps in a patient's breasts.
Quite frankly, this court is appalled that Dr. John R. Evans had the audacity to characterize his evaluation as a medical examination or to imply that what he described as "cursory breast examination" should be considered a medically sufficient breast examination. It seems incredible to the court that a physician would deliberately choose not to expend the additional few minutes or seconds to thoroughly palpitate the sides of the breasts, which is a standard minimally intrusive cancer detection technique. His admission that he merely "pressed" on plaintiff's breasts, coupled with the additional admission that such acts would not necessarily disclose lumps in breasts, is substandard medical care. Moreover, the preponderance of the credible evidence indicates that a lump was present in plaintiff's right breast when Dr. Evans performed this evaluation and that Dr. Evans failed to deliver reasonable medical care.
The day following her physical examination, plaintiff examined her own breasts. At that time, she discovered a lump in the right breast, which she characterized as being about the size of a pea. Plaintiff then sought an additional medical evaluation at defendant's medical clinic.
Medical treatment was obtained at ORW by signing the daily clinic list, which was usually posted on the previous day. The list is examined by a nurse assigned to the evening or overnight shift. This nurse is required to screen those who requested medical treatment and she apparently has the discretion to determine whether or not an inmate will be examined the next day by the physicians.
Testimony indicated that less than half of the inmates who sign the clinic list are actually seen by medical personnel the next day. Also, those not examined on the day for which the list is signed are given no preference in being examined on the following day. In fact, their names are simply deleted from the daily list and their only recourse is to continually sign the list until they are examined. Consequently, it may be difficult for an inmate to obtain an examination by a doctor or nurse.
The preponderance of the evidence indicates that after May 27, 1989, plaintiff constantly signed the clinic list, and listed the reason for requested treatment; yet, she was not seen by any medical personnel until June 21, 1989. The court concludes that such a delay in obtaining treatment was wholly unwarranted under the circumstances and falls below a medically acceptable standard for the provision of medical care in institutions such as ORW.
On June 21, 1989, plaintiff was examined by nurse Nancy Ann Ardney, who noted in her nursing notes that plaintiff had a "moderate large mass in right breast." Nurse Ardney recognized that the proper procedure was to measure such a mass but she testified that this was impossible because no measuring device was available. The missing measuring device to which she alluded was a simple ruler. The nurse concluded that plaintiff should be examined again by Dr. Evans.
Dr. Evans again examined plaintiff on June 28. He recorded in the progress notes that plaintiff had "a mass on right wrist [ sic]. Will send her to OSU and give her Benadryl for allergy she has." Obviously Dr. Evans meant to write "breast" rather than "wrist." He did not, however, measure the size of the mass on plaintiff's right breast. For security reasons, Dr. Evans never told plaintiff when she would be transported to the Ohio State University ("OSU") Hospital. Plaintiff waited approximately one week and then began signing the clinic list again. However, plaintiff was never transported to OSU Hospital during the remainder of her term at ORW. Dr. Evans could not give a reasonable explanation for this omission. The preponderance of the evidence indicates that the failure to transport plaintiff to the hospital, or other location where mammogram examination equipment was located, constituted a failure of such medical care defendant reasonably owed to plaintiff under these circumstances.
Near the end of plaintiff's incarceration, she was transferred to the Franklin County Pre-release Center ("FCPR"). This transfer occurred on September 28, 1989. She was examined by a nurse at FCPR on September 30, who recorded that plaintiff had a "golfball" size lump in her right breast. The nurse placed plaintiff on the doctor's list, and, on October 4, plaintiff was examined by Dr. John F. Bradley. The physician measured the lump and found it to be approximately four by two centimeters. Dr. Bradley then advised plaintiff that she would be transported to the OSU Hospital for a mammogram examination.
On October 27, 1989, plaintiff was transported to OSU Hospital where she was treated by Dr. Michael Walker. Plaintiff received a mammogram examination, which indicated that the tumor was probably malignant. This diagnosis was confirmed by a biopsy performed on November 9, 1989. Based upon these findings, Dr. Walker advised plaintiff that a complete mastectomy was now necessary. Plaintiff preferred the breast conserving lumpectomy procedure. However, Dr. Walker advised plaintiff that such an operation was not feasible because of the size of the tumor. Plaintiff determined to obtain a second opinion and delayed the operation.
Plaintiff was released from confinement on November 13, 1989. On November 16, plaintiff was examined by Dr. Isadore Lidsky, a surgeon. Dr. Lidsky noted the existence of the lump in plaintiff's breast and determined that the size of the mass was approximately four to five centimeters and somewhat fixed.
In order to more accurately appraise plaintiff's options, Dr. Lidsky had all of the biopsy slides examined by pathologist Richard H. Lash, M.D. Dr. Lash concluded that plaintiff had an infiltrating carcinoma, which was poorly differentiated, with a nuclear grade of three out of three. Thereafter, Dr. Lidsky performed a modified radical mastectomy upon plaintiff's right breast, by which nearly all of plaintiff's right breast was removed.
At trial, the parties strongly disputed the size and probable growth rate of the cancerous lump. Defendant contended that the lump did not change in size over the time at issue and, therefore, that any negligence on its part was not the proximate cause of plaintiff's right breast mastectomy. Plaintiff asserted that the lump was very small when she first discovered it, and that it grew over the following spring, summer, and autumn months to its ultimate size. The parties presented experts on both sides of this issue, as well as testimony tending to support each view. The court concludes, based upon the preponderance of the competent, credible evidence, that the cancerous lump was in fact quite small when plaintiff first discovered it, and that it grew to its ultimate size over the time that proper treatment was ignored.
Defendant also contended that plaintiff's own negligence proximately caused or contributed to her own losses. In defendant's view, plaintiff should have utilized the formal complaint procedure, or some other method, to alert defendant's employees that she was not receiving appropriate medical attention. The court concludes that this argument is without merit. The evidence presented convinces this court that plaintiff was a new inmate, unfamiliar with the nuances of other institutional procedures, and that she made numerous requests for medical care through the proper institutional channels designated for such requests. Plaintiff's requests for medical attention simply were not heeded by defendant's employees.
Turning now to the ultimate issue of whether defendant's negligence proximately caused plaintiff's losses, it is clear from the evidence that plaintiff would have required some surgical procedure. However, it is probable that an earlier procedure would have safely and reliably conserved a large part of plaintiff's right breast. Through the inexcusable delays previously mentioned, plaintiff lost this option and, instead, was medically required to have the entire breast removed. It is therefore the conclusion of the court that defendant's negligence was the sole and proximate cause of all of plaintiff's losses in excess of the basic lumpectomy procedure.
In conclusion, plaintiff has proven by a preponderance of the evidence that ORW owed her a duty, and that it breached said duty. Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 47 O.O.2d 282, 247 N.E.2d 732. Plaintiff has also proven by a preponderance of the evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care, and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission such a physician or surgeon would have done under like or similar conditions or circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things. Bruni v. Tatsumi (1976), 46 Ohio St.2d 127, 75 O.O.2d 184, 346 N.E.2d 673, paragraph one of the syllabus.
As a direct and proximate result of defendant's negligence, the plaintiff suffered damages including physical pain, emotional suffering, cosmetic disfigurement and permanent damage. Furthermore, her life expectancy has been reduced by approximately fifteen percent. Therefore, the court finds plaintiff's total damages to be $85,000.
Judgment will be rendered for plaintiff and against defendant in the sum of $85,000.
Judgment for plaintiff.
FRED J. SHOEMAKER, J., retired, of the Franklin County Court of Common Pleas, sitting by assignment.