Medical Malpractice Case of the Month
August 2001

An Indiana appellate court has upheld a defense verdict in a case where a physician argued that a patient's loss of a chance of surviving cancer was caused be the patient's unreasonable failure to promptly obtain medical treatment and diagnostic tests. The court approved a trial court's jury instructions which permitted findings of contributory negligence and assumption of the risk on the part of the patient.
The case involved a patient who consulted her family physician in 1988 after noticing a lump in her right breast. The family physician made a diagnosis of fibrocystic disease and ordered a mammogram which indicated that the patient was suffering from extensive fibrocystic disease in both breasts. The family physician performed a needle aspiration which revealed no evidence of malignancy. Four years later, in late 1992, the patient again consulted the family physician after noticing a lump in her left breasts. The family physician ordered a mammogram which revealed fibrocystic changes but no abnormal growth. During two subsequent appointments in January and June of 1993, the family physician conducted examinations and again diagnosed fibrocystic disease. In October, 1993, the patient again consulted the family physician, complaining that her left breast had been sore, red and swollen for three to four weeks. The family physician detected a firm mass and made a working diagnosis of mastitis (an infection) and prescribed an antibiotic. However, the family physician ordered an ultrasound and mammogram and advised the patient that he wanted to examine her again three days later to rule out inflammatory breast cancer. The patient returned three weeks later in November, 1993. and reported that the tests had been {., postponed by her radiologist due to tenderness in
her breast. The family physician re-ordered and scheduled the tests and instructed the patient to return in two weeks. However, the patient elected to seek a second opinion and did immediately not undergo the tests or return to the family physician's office. The patient underwent tests in late November, 1993, and these tests revealed the presence of inflammatory breast cancer. Thereafter, the patient consulted several different doctors who recommended chemotherapy and a mastectomy. The patient commenced chemotherapy in late December, 1993, but did not complete it. In June, 1994, the patient underwent a lumpectomy, rather than a mastectomy. The patient filed a malpractice action alleging that the family physician had failed to properly diagnose and treat her breast cancer. The suit alleged that the family physician's negligence reduced the patient's chances of surviving the cancer from 80 per cent to 20 per cent. At trial, the family physician argued that the patient had contributed to her own injuries by failing to take reasonable actions which could have resulted in a more timely diagnosis of the cancer. At the close of the family physician's case, the patient moved for judgment on the evidence with regard to the issues of contributory negligence and Incurred (assumed) risk, asserting that there was no evidence to support these defenses. The trial court denied the patient's motion and instructed the jury to render a verdict in favor of the family physician if the patient's injuries resulted from (a) the patient's failure to exercise reasonable care for her own safety; or (b) the patient voluntarily exposed herself to a known danger. The jury subsequently returned a defense verdict, and the patient appealed. The appellate court affirmed, holding that the trial court had acted properly in (a) denying the patient's motion for judgment as a matter of law on the issues of contributory negligence and incurred risk; and (b) instructing the jury on these defenses. The court found sufficient evidence to support these defenses because the patient waited several weeks before seeking an evaluation of her symptoms in October, 1993, and then delayed five weeks in obtaining diagnostic testing which the family physician ordered. Citing testimony that the
patient suffered from an extremely rapid-growing type of cancer, the court concluded that these actions on the part of the patient could be found to have constituted contributory negligence or assumption of the risk. The court also cited evidence that the patient failed to promptly undergo recommended treatment after the cancer was diagnosed. A dissenting justice argued that a patient's unreasonable conduct cannot constitute contributory negligence unless it concurs with that of the negligent physician, and that there was no evidence that the patient had acted unreasonably or assumed a risk of harm during the time she was seeing the family physician. The dissent pointed out that the patient's suit sought compensation for a reduction in her chance of survival (from 80 per cent to 20 per cent) as a result of the family physician's failure to diagnose the cancer prior to the time the patient consulted other doctors. The dissent argued that the patient's reliance upon the family physician's diagnosis of fibrocystic disease could not constitute contributory negligence or assumption of the risk, and that any negligence on the part of the patient in pursuing treatment after she left the family physician's care was relevant only to the issue of mitigation of damages. - King v. Clark, No. 43A03-9801-CV-00039 (md. Ct. App., 3d Dist. April 23, 1999).

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